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Motion to Correct Protective Order

CASE NO. 09-CV-2292 VRW (JCS)

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DENNIS J. HERRERA, State Bar #139669City AttorneyTHERESE M. STEWART, State Bar#104930Chief Deputy City AttorneyDANNY CHOU, State Bar#180240

Chief of Complex and Special LitigationRONALD P. FLYNN, State Bar #1841867VINCE CHHABRIA, State Bar #208557ERIN BERNSTEIN, State Bar#231539CHRISTINE VAN AKEN, State Bar#241755MOLLIE M. LEE, State Bar#251404Deputy City AttorneysCity Hall, Room 234One Dr. Carlton B. Goodlett PlaceSan Francisco, California 94102-4682Telephone: (415) 554-4708Facsimile: (415) 554-4699

Attorneys for Plaintiff-IntervenorsCITY AND COUNTY OF SAN FRANCISCO

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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

Plaintiffs,

vs.

ARNOLD SCHWARZENEGGER, in hisofficial capacity as Governor of California;EDMUND G. BROWN JR., in his officialcapacity as Attorney General of California;MARK B. HORTON, in his official capacityas Director of the California Department ofPublic Health and State Registrar of VitalStatistics; LINETTE SCOTT, in her officialcapacity as Deputy Director of HealthInformation & Strategic Planning for theCalifornia Department of Public Health;PATRICK O'CONNELL, in his officialcapacity as Clerk-Recorder for the County ofAlameda; and DEAN C. LOGAN, in hisofficial capacity as Registrar-Recorder/CountyClerk for the County of Los Angeles,

Defendants.

Case No. 09-CV-2292 VRW (JCS)

PLAINTIFF-INTERVENORS EMERGENCYMOTION TO CORRECT PROTECTIVE

ORDER [DOCKET NO. 361]

Hearing Date: Jan. 6, 2010Hearing Judge: Honorable J.C. Spero

Trial Date: Jan. 11, 2010

Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page1 of 5
http://dockets.justia.com/http://docs.justia.com/cases/federal/district-courts/california/candce/3:2009cv02292/215270/393/http://dockets.justia.com/docket/court-candce/case_no-3:2009cv02292/case_id-215270/

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CASE NO. 09-CV-2292 VRW (JCS)

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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.

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.

CITY AND COUNTY OF SAN FRANCISCO,

Plaintiff-Intervenor

vs.

ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUND G.BROWN JR., in his official capacity as AttorneyGeneral of California; MARK B. HORTON, inhis official capacity as Director of the CaliforniaDepartment of Public Health and State Registrarof Vital Statistics; and LINETTE SCOTT, in herofficial capacity as Deputy Director of HealthInformation & Strategic Planning for theCalifornia Department of Public Health,

Defendants.


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CASE NO. 09-CV-2292 VRW (JCS)1

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Plaintiff-Intervenor City and County of San Francisco hereby submits this motion to correct the

protective order issued in this matter [Doc. # 361] to conform to the Courts oral ruling on that

protective order at the hearing on January 6, 2010. Specifically, San Francisco seeks to correct

paragraph 7.3(a) to allow San Francisco and any other government office to identify attorneys and

individuals that will have access to documents marked Highly Confidential Attorneys Eyes Only

by changing the term Receiving Partys Outside Counsel of record in this action to Receiving

Partys Counsel of record in this action. The restriction to outside counsel would categorically

exclude government attorneys, who necessarily work for the government entity they represent.

San Francisco raised this issue on December 3, 2009, when it wrote the Court and requested

the change from "outside counsel" to "counsel" in the then-proposed protective order submitted by

Plaintiffs. [Doc. # 273.] While Defendant-Intervenor Proposition 8 Proponents sought to exclude

any access to such documents by San Francisco, San Francisco requested the change to allow

attorneys in the San Francisco City Attorneys Office who are working on the matter and otherwise

meet the criteria as set out the protective order to gain access to the documents in this matter. [Id.]

Plaintiff joined in the request. [Id. at 2.]

The Court held a hearing on January 6, 2010 to discuss, among other things, the terms the

protective order. On this specific issue (access to documents marked Highly Confidential

Attorneys Eyes Only), the Court provided additional protection by requiring that as to any attorney

or employee to whom such documents would be provided under paragraph 7.3(a), that notice of all

such attorneys and employees to whom highly confidential attorney's eyes only information will be

disclosed shall be given not less than 24 hours in advance of the disclosure to give the other parties the

opportunity to object to the disclosure on grounds specific to the designated employee or attorney.

[Exhibit A, Transcript at 100:7-101:9.] Plaintiffs agreed to that extra protection. [Id. at 101:10-11.]

Plaintiffs then specifically raised the issue of access to such documents by San Francisco. [Id. at 101:

11-14] The Court denied Defendant-Intervenor Proposition 8 Proponents request that the City

Attorneys Office be categorically denied access to the documents, and indicated that the City

Attorney's office should follow the same confidentiality procedures established for the other parties.

[Id. at 101:15-102:5.] Defendant-Intervenors submitted to the order. [Id. at 102:16-19.]


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To conform paragraph 7.3 (a) to the Courts express ruling at the hearing, San Francisco

requests that the Court amend paragraph 7.3(a) as follows:

the Receiving Partys Counsel of record in this action, as well as employees ofsaid Counsel to whom it is reasonably necessary to disclose the information forthis litigation and who have signed the Agreement to Be Bound by ProtectiveOrder that is attached hereto as Exhibit A, provided that it shall not beprovided to any Counsel or employee who held an official position in anyprimarily formed ballot committee related to Proposition 8 (see http://cal-access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) ornow holds an official position in a similar committee that is now circulatingpetitions for a 2010 ballot initiative to repeal Proposition 8. For purposes of thissections 7.3 and 7.5 an official position is defined as one which authorizes theholder of said position to contractually bind (either solely or in conjunction withothers) the primarily formed ballot committee (or similar committee circulatingpetitions to place an initiative on the 2010 ballot) with respect to mattersrelating to communications disseminated by the committee or otherwise to

spend funds exceeding $1,000 on behalf of the committee, provided however,that notice of all such attorneys and employees to whom HIGHLYCONFIDENTIAL - ATTORNEY'S EYES ONLY information will be disclosedshall be given not less than 24 hours in advance of the disclosure to give theother parties the opportunity to object to the disclosure on and seek relief fromthe court on grounds specific to the designated attorney or employee;

Because the Courts order contemplated that San Francisco would provide notice the names of

individuals to whom information will be disclosed, and in order to avoid any delay, San Francisco is

doing so in anticipation of an amended order being entered.

San Francisco circulated a copy of a draft of this motion, with Exhibit A, to the parties on the

morning of January 8, 2010. Plaintiffs and the Attorney General support the request. The Alameda

County Clerk-Recorder, the County of Los Angeles, and Administration Defendants have stated that

they have position on the request. Defendant-Intervenors have not provided their position.


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Dated: January 8, 2010 DENNIS J. HERRERACity AttorneyTHERESE M. STEWARTChief Deputy City Attorney

DANNY CHOUChief of Complex & Special LitigationRONALD P. FLYNNVINCE CHHABRIAERIN BERNSTEINCHRISTINE VAN AKENMOLLIE M. LEEDeputy City Attorneys

By: /s/RONALD P. FLYNN

Attorneys for Proposed IntervenorCITY AND COUNTY OF SAN FRANCISCO


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1 DENNIS J. HERRERA, State Bar#139669City Attorney2 THERESE M. STEWART, State Ba r #104930Chief Deputy City Attorney3 DANNY CHOU, State Bar #180240Chief of Complex and Special Litigation4 RONALD P. FLYNN, State Ba r #1841867VINCE CHHABRIA, State Bar #2085575 ERIN BERNSTEIN, State Bar #231539CHRISTINE VAN AKEN, State Bar #2417556 MOLLIE M. LEE, State Bar #251404Deputy City Attorneys7 City Hall, Room 234One Dr. Carlton B. Goodlett Place8 San Francisco, California 94102-4682Telephone: (415) 554-47089 Facsimile: (415) 554-469910 Attorneys for Plaintiff-IntervenorsCITY AND COUNTY OF SAN FRANCISCO11

12 UNITED STATES DISTRICT COURT13 NORTHERN DISTRICT OF CALIFORNIA14 KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW (JCS)15 PAUL T. KATAMI, and JEFFREY J.ZARRILLO, DECLARATION OF RONALD P. FLYNN IN16 SUPPORT OF PLAINTIFF-INTERVENORS

Plaintiffs, EMERGENCY MOTION TO CORRECT17 PROTECTIVE ORDER [DOCKET NO. 3611vs.18 ARNOLD SCHWARZENEGGER, in his Hearing Date: Jan. 6, 201019 official capacity as Governor of California; Hearing Judge: Honorable J.C. SperoEDMUND G. BROWN JR., in his official20 capacity as Attorney General of California; Trial Date: Jan. 11, 2010MARK B. HORTON, in his official capacity21 as Director of the California Department ofPublic Health and State Registrar of Vital22 Statistics; LINETTE SCOTT, in her officialcapacity as Deputy Director of Health23 Information & Strategic Planning for theCalifornia Department of Public Health;24 PATRICK OCONNELL, in his officialcapacity as Clerk-Recorder for the County of25 Alameda; and DEAN C. LOGAN, in hisofficial capacity as Registrar-Recorder/County26 Clerk for the County of Los Angeles,27 Defendants.28

Motion to Correct Protective OrderCASE NO. o9-Cv-2292 vRW (JCS)

Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page1 of 11

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I and2 PROPOSITION 8 OFFICIAL PROPONENTSDENNIS I-IOLLINGSWORTH. GAIL J.3 KNIGHT, MARTIN F. GUTIERREZ. 1-IAK-SHING WILLIAM TAM, and MARK A.4 JANSSON; and PROTECTMARRIAGE.COMYES ON 8, A PROJECT OF CALIFORNIA5 RENEWAL,6 Defendant-Intervenors.7

PROPOSITIONS OFFICIAL PROPONENTS8 DENNIS HOLLINGSWORTH. GAIL J.KNIGHT, MARTIN F. GUTIERREZ, flAK-9 SH[NG WILLIAM TAM, and MARK A.JANSSON; and PROTECTMARRIAGE.COM -

10 YES ON 8, A PROJECT OF CALIFORNIARENEWAL.11

Defendant-Intervenors.1213 CITY AND COUNTY OF SAN FRANCISCO,14 Plaintiff-Intervenor15 vs.16 ARNOLD SCHWARZENEGGER. in his official

capacity as Governor of California; EDMUND G.17 BROWN JR., in his official capacity as AttorneyGeneral of California; MARK B. HORTON, in18 his official capacity as Director of the CaliforniaDepartment of Public Health and State Registrar19 of Vital Statistics; and LINETTE SCOTT, in herofficial capacity as Deputy Director of Health20 Information & Strategic Planning for theCalifornia Department of Public Health,21

Defendants.22232.

25262728

Motion to Correct Protective OrderCASE NO. 09-CV-2292 VRW (JCS)


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DECLARATION OF RONALD P. FLYNN2 1. Ronald P. Flynn, declare as follows:3 1. I am a Deputy City Attorney for the City and County of San Francisco and one of the4 attorneys of record for the defendants in this action. I am licensed to practice law in the state of5 California and before this Court. Except where noted, the following is within my personal knowledge6 and, if called, I could and would testify competently with respect thereto.7 2. Attached as Exhibit A to this declaration is excerpts of a true and correct copy of the8 transcript of the hearing in this matter on January 6, 2010.9 3. On January 8. 2010, I circulated a copy of a draft of this motion, with Exhibit A, to the

10 parties at 9 :15 am. Counsel for Plaintiffs and the Attorney General have written me and stated that11 they support the request. Counsel for The Alameda County Clerk-Recorder, the County of Los12 Angeles, and Administration Defendants have written me and stated that they have position on the13 request. Defendant-Intervenors have not provided their position.14 1 declare under penalty of perjury under the laws of the state of California that the foregoing is15 true and correct. Executed this 9th day of January, 2010, at San Francisco, California.1617 Ronald P. Flynn1819202122232425262728

Motion to Correct Protective Order 1CASE NO . o9-cv-2292 VRW (JCS)


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EXHIBIT A


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Pages 1 - 126UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIABEFORE TH E HONORABLE JOSEPH C. SPERO, MRGISTRATE

KRISTIN M. PERRY,SANDRA B. STIER, PAUL T. KATAI4I,and JEFFREY J. ZARRILLO,

Plaintiffs.vs. ) NO. C 09-2292-VRWARNOLD SCHWARZENEGGER, in hisofficial capacity as Governor ofCalifornia; EDMUND G. BROWN, JR.,in his official capacity asAttorney General of California

ARK B. HORTON, in his officialcapacity as Director of th eCalifornia Department of P ublicHealth and State Registrar ofVital Statistics; LINETTE SCOfl,in her official capacity as DeputyDirector of Health Information &Strategic Planning for theCalifornia Department of PublicHealth; PATRICK OCONNELL, in h isofficial capacity asClerk-Recorder for th e County ofAlameda; and DEAN C. LOGAN, in hisofficial capacity asRegistrar-Recorder/County Clerkfor th e County of Los Angeles,

)San Francisco, CaliforniaDefendants. ) Wednesday

January 6, 2010

TRANSCRIPT OF PROCEEDINGS

ReponcdByv Debra L. Pas C5R 11914 CR1?, RMI? RI)?OflkJdReporter- US District CourtComputerized Tnwsenption Echace

Debra . Fat, CS. C tR4MQ, RflOfflcidponer - VS. District Coini - San !Francisco, CalIfornia(415)431-1477


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APPEARANCES:For Plaintiffs: GIBSON, DUN N & CRUTCI-TER , LLP

1050 Connecticut Avenue, N.W.Washin gto n, D.C. 20036-5306

BY: MRTTEEW D. MCGILL, ESQUIRE

GIBSON, DUNN & CRUTCHER LLP333 South Grand AvenueLos Angele s, California 90071-3197

BY: ThEODORE J. BOUTROUS, JR ., ESQUIRECHRISTOPHER D. DUSSEAULT, ESQUIRE

GIBSON DUNN & CRUTCHER LLP555 Mis sio n Street, Suite 3000San Francis co , California 94105-2933

BY: ETHAN D. DETTMER, JR ., ESQUIRE

BO lES, SCuLLER & FLEXNER LLP1999 Harrison Street, Su it e 900Oakland, California 94612

BY: JEREMY MICHAEL GOLDMAN, ESQUIRE

For Plaintiff- CITY AND COUNTY OF SAN FRANCISCOIntervenor: OFFICE OF TIlE CITY ATTORNEY

One Drive Canton B. Goodle tt P la ceSan Francis co , California 94102-4682

BY: DAZ4NY CHOU, DEPUTY CITY ATTORNEY

For Defe ndant MENNEMEIER, GLASSMAN & STROU])Gov . Schwarz enegger: 980 9th Street, Su ite 1700

Sacramento, California 95814-2736By: A1OREW WALTER STROUD, ESQUIRE

For Defendant STATE ATTORNEY GJERALS OFFICEEdmund G. Brown Jr.: 455 Golden Gate Aven ue, Suite 11000San F rancis co , California 94102-7004

BY: TAMAR PACHTER, DEPUTY ATTY GENERAL

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

Debra PaL CSt CW tM . cRflOffciaNijpor ter - US. Viarkt Court - San !Fraucisco, Qa4fornia(415) 431-1477


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1 APPEARANCES (CONTINUED):2 F o r D e fe n d a n t- COOPER & KIRK

Intervenors: 15 23 New H a m p s h ir e A v e n u e , N.W.3 w a s h in g to n , D .C . 2 00 3 6

BY: MICHAEL W. KIRK, ESQUIRE4 JESSE PANUCCIO, ESQUIRE5

678910111213141516171819202122

232425

Debra C. QaL CSR,C Rfl flOfficidRcpo tier - VS. Distrtt Ccut - San Franthco, Cafifornia(415) 431-1477


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1 havent giv en my court reporter a break. So before I get in2 too much troub le , lets ta ke a five-m inute recess.3 (whereupon there was a recess in th e proceedings4 from 3:49 p.m . until 3:58 p.m .)S TH E CLERK: Recalling C 09-2292, Kristin Perry6 versus Arnold Schwarzenegger.

7 TH E COURT: So the next th ing I want to take brie f8 argument on is the protective order, so you can pro duce these9 documents under whate ver level of protection that you th ink10 is appropria te .11 So we have got the pro pose d protective orders from12 both sides and th e arguments . What I was th ink ing of doing13 is en tering a form of protective order that is essentially14 th e form proposed by the plaintiffs, except w ith respect to15 Para gra ph 7.3 (a) and (b) adding the follow in g qualification:16 pro vid ed, however, th a t no tice of all17 such atto rneys and employee s to whom high ly18 confidential attorneys eyes only inform ation19 w ill be disc losed shall be giv en not less20 th an 24 hours in advance of th e disclosure to21 give the o ther parties th e opportun ity to22 object to th e disclosure on grounds specific23 to th e desig nate d employee or atto rney .24 The id ea bein g, I mean, you get this list and if25 there is someone on the re th a t you have a particular issue IV Dera L. eas, Cfl CflAOfficidw.poner - V4 Vis:nct Court - San francisco, CalIf ruth(415) 431-1477


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1 w ith , you have an opportun ity to come to at least -- you2 raise your ob jec tion . If you dont get satisfaction, do an3 emergency application fo r th e Court sayin g dont apply --4 dont let that person see th ose documentsS I picked 24 hours -- I would normally have picked a6 further, a lo nger period of time -- because we dont have7 very much tim e.8 So that was my th ought on that, but I would hear9 from anyone on th e protective order.10 M R. BOtrrROUs: Your Honor, I th ink that sounds11 fine. The one issue I would flag on th e Courts addition is12 I th ink the proponents had ob jected to anyone from th e C ity13 of San Francisco having any access to the documents, and we14 would object to that.15 ThE COURT: No. Im not going to -- Im going to16 reject that as a general proposition . The city attorneys17 office w ill be allowed to identify those ind iv iduals and the18 office that th ey are goin g to have access to th ese documents.19 If there are particular problems w ith those specific20 ind iv iduals that you -- th e defendant-in tervenors have21 evidence of and want to make an applica tion to the Court as22 to th ose particular ind iv idua ls , but just because one works23 fo r th e city atto rney , thats not sufficient.24 The city attorneys office, I must say, has worked25 in this Court and w ith this Court on many cases, many cases

\7 Debra L Pas, CS CW9 lfl flQfficth(ppo4er- U. S. District Court -San !F ran thco , Cailfirn ia(4 15 ) 431-1477


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1 in volv in g highly confidential matters, and I hav e alw ays2 found their lawyers supremely ethical and I have no doubt3 th ey w ill treat this ethically.4 On th e o ther hand, if there is some specific5 evid ence as to an ind iv idual, I want to hear about that.6 . BOUTROUS: Your Honor, once the protective7 order is issued , w ill it be possib le for us to get a copy ofS th e P ren tice declaration just so we can see - - pursuant to9 the protective order, so we can see who is on there?

10 THE COURT: I havenrt thought thro ugh all the11 im plications on that. That was subm it ted with the12 understandin g that it be in camera . Im not sure that it13 would be provid ed to you. You would have to separa te ly14 address that. I cant address it on the fly.15 MR. BOUTROUS: Okay, your 1-lonor. Thank you.16 THE COURT: Did you want to say anythin g about th e17 protective order?18 MR. KIRK: We will rest. We th ought ours was19 better, but - -2O THE COURT: Yours was quite good. It was quite21 good. Its a hard -- there is no abso lu te ly right and wrong22 there. So Im going to hand to my courtroom deputy...23 (w hereupon, document was te ndered24 to the courtroom deputy .)25 THE COURT: So, hopefu lly , that w ill get out

Dera . as, cs. Cw tiiOfficidRsporur- VS. District Court -San raacisco, Catifmia(415) 431-1477


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CERTIFICATE OF REPORTER

I, DEBRA L. PAS, Official Reporter for th e UnitedS ta tes Court, Northern District of California, here by certifythat th e foregoin g proceedin gs in C 09-2292 VRW, KRISTINPERRY, et al, vs ARNOLD SCI -IWARZENEGGER , et al were reportedby me, a certified shorth and reporter, and were thereaftertranscribed under my direction in to typew riting ; tha t theforegoin g is a full, complete and true record of saidproceedin gs as bound by me at th e tim e of filing.

The validity of th e reporters certification of saidtranscript may be void upon disassembly and/or removalfrom the court file.

/s/ Debra L. PasDebra L. Pas, CSR 11916, CRR RMR, RPR

Thursday, January 7, 2010

De6raLPas, CS,Ofl. RflOfficth(cR,poner - VS. Distric t Court - San Trancisco, California(415 ) 431-1477


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