1:13-cv-01861 #38

Case 1:13-cv-01861-JEJ Document 38 Filed 10/04/13 Page 1 of 29
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEB WHITEWOOD and SUSAN WHITEWOOD, FREDIA HURDLE and LYNN HURDLE, EDWIN HILL and DAVID PALMER, HEATHER POEHLER and KATH POEHLER, FERNANDO CHANG-MUY and LEN RIESER, DAWN PLUMMER and DIANA POLSON, ANGELA GILLEM and GAIL LLOYD, HELENA MILLER and DARA RASPBERRY, RON GEBHARDTSBAUER and GREG WRIGHT, MARLA CATTERMOLE and JULIA LOBUR, MAUREEN HENNESSEY, and A.W. AND K.W., minor children, by and through their parents and next friends, DEB WHITEWOOD and SUSAN WHITEWOOD, Plaintiffs, v. THOMAS W. CORBETT, in his official capacity as Governor of Pennsylvania; MICHAEL WOLF, in his official capacity as Secretary of the Pennsylvania Department of Health; KATHLEEN KANE, in her official capacity as Attorney General of Pennsylvania; MARY JO POKNIS, in her official capacity as Register of Wills of Washington County; and DONALD PETRILLE, JR., in his official capacity as Register of Wills and Clerk of Orphans Court of Bucks County,
Civil Action
No. 13-1861-JEJ
Defendants.

JOINT CASE MANAGEMENT PLAN
Having complied with the meet and confer requirements set forth in the LOCAL RULES, or with any orders specifically modifying their application in the above-captioned matter, the parties hereby submit the following Joint Case Management Plan.
1.
Principal Issues 1.1 Separately for each party, please give a statement summarizing this case: By Plaintiffs: Plaintiffs filed this action on July 9, 2013 to challenge the constitutionality of Pennsylvanias laws and conduct excluding same-sex couples from marriage and voiding within Pennsylvania the marriages of same-sex couples entered into in other states, namely 23 Pa.C.S. 1102 and/or 1704. Plaintiffs are (i) ten lesbian and gay couples in committed relationships who either wish to marry or are already married, but who are treated as legal strangers in Pennsylvania; (ii) one widow whose marriage, performed in Massachusetts, is not recognized by the Commonwealth because her spouse was a woman; and (iii) two teenage children of one of the Plaintiff couples. As will be shown at trial,1 by preventing the unmarried Plaintiff couples from marrying and by refusing to recognize the marriages of the Plaintiff couples entered into in other states, Pennsylvania law deprives Plaintiffs of the dignity, respect and social recognition of the unique and special status of marriage, demeans and stigmatizes these couples and their families, denies them numerous legal protections available to oppositesex couples and t heir families by virtue of their marriages, denies them eligibility for some federal protections, and harms them in other tangible and non-tangible ways.
Plaintiffs believe that they could successfully move for summary judgment but do not intend to file such a motion because they seek the opportunity to present to the Court both the purely legal arguments and the factual arguments to ensure that this Court and reviewing courts have before them the full range of arguments and evidence relevant to these constitutional claims. This would promote judicial economy by avoiding any delay caused by a remand for further development of the record.
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By preventing the unmarried Plaintiff couples from marrying and by refusing to recognize the marriages of the Plaintiff couples entered into in other states, Defendants have violated and continue to violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Therefore, Plaintiffs seek (a) a declaration that the Commonwealths prohibition of marriage for same-sex couples, including its refusal to recognize marriages of same-sex couples validly entered into outside of the Commonwealth, violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction (i) preventing Defendants from denying the Plaintiff couples and all other same-sex couples otherwise eligible to marry the right to marry in the Commonwealth of Pennsylvania, and (ii) directing Defendants to recognize the marriages of the Plaintiff couples and other same-sex couples validly entered into outside of Pennsylvania.2 Plaintiffs submit that an analysis of the issues presented by the parties in this form shows that while this case is big in its importance, it is not big in its complexity or the magnitude of proofs needed for trial. Accordingly, Plaintiffs propose a trial date of February 17, 2014, and Plaintiffs presently anticipate presenting their case in approximately 4-5 days. For the reasons set forth in section 6, infra, this proposed trial date is eminently manageable and appropriate, especially in light of the fact that Plaintiffs fundamental rights are at stake in this action and they suffer irreparable harm every day. By Defendant Kathleen Kane: Attorney General Kathleen Kane has filed a motion for her dismissal as the Plaintiffs lack standing against her, and because her general duties under the Commonwealth Attorneys Act are insufficient to make her a proper party to the litigation challenging the Marriage Law. As the Attorney General is an improper party to the action and she may be
Defendants have indicated that they intend to file numerous motions to dismiss and/or transfer this action, and they describe the bases of some of those motions in this Joint Case Management Plan. Plaintiffs do not address the merits of those motions here, but will demonstrate in their forthcoming opposition briefs that the motions are without merit and should be denied.
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dismissed from the suit, she declines to take a position on the legal claims or the positions of the parties regarding scheduling at this time. Any reference to the position of defendants in the following paragraphs should not be read to express or include the opinion of Attorney General Kane. By other Defendants:
Plaintiffs brought this action on July 9, 2013, alleging that Pennsylvanias marriage laws violate the 14th Amendment to the U.S. Constitution. Plaintiffs seek declaratory and injunctive relief against the operation of the Commonwealths marriage laws.
All Plaintiffs claim that they are harmed by the definition of marriage as [a] civil contract by which one man and one woman take each other for husband and wife, and the marriage laws declaration that it is the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. Some Plaintiffsthose who have been issued marriage licenses in other jurisdictionsclaim that they are also harmed because [a] marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.
Plaintiffs name as Defendants, solely in their official capacities, the following individuals: (1) the Governor; (2) the Attorney General; (3) the Secretary of Health; (4) the Register of Wills of Washington County; and (5) the Register of Wills and Clerk of the Orphans Court of Bucks County.
Plaintiffs seek: (1) a declaratory judgment that the Commonwealths marriage laws violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (2) a declaratory judgment that the Commonwealths marriage laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (3) a permanent injunction enjoining Defendants from complying with the existing laws regarding the issuance of marriage licenses in the Commonwealth of Pennsylvania, and directing Defendants to recognize the marriage certificates of plaintiff couples obtained outside the Commonwealth of Pennsylvania; and (4) the costs of suit, including reasonable attorneys fees under 42 U.S.C. 1988 and any other relief to
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which they may be entitled.
In addition, Plaintiffs cite in their complaint several specific examples of allegedly detrimental treatment under PA law that the Governor has no responsibility to administer, control or enforce, and over which the Secretary of Health for the most part has no administrative responsibility.
As preliminary matters, Defendants contend that Plaintiffs equal protection and due process allegations should be dismissed for want of a substantial federal question; and Governor Corbett contends that he is not a proper defendant in this action. Pennsylvania possesses the essential authority to define the marital relation. No particular gendered definition of marriage is required or mandated by the United States Constitution. Plaintiffs substantive due process allegations fail to state a claim because same-sex marriage is not objectively or deeply rooted in Pennsylvanias or our Nations history and tradition. The Commonwealths marriage laws possess multiple rational bases and survive the scrutiny applicable to Plaintiffs claimsrational basis.
1.2
The facts the parties dispute are as follows: Plaintiffs Position:
No Defendant has yet identified any specific state interest(s) that he or she will contend are advanced by 23 Pa.C.S. 1102 and/or 1704. However, Plaintiffs anticipate that they may dispute facts regarding at least: (a) what state interests are furthered by Pennsylvanias ban on marriage for same-sex couples, (b) the importance and/or legitimacy of the state interests asserted in support of the constitutionality of the ban, and (c) the existence of a tailored or rational connection between the asserted interests and the ban. Plaintiffs understand that some Defendants will dispute the facts underlying the analysis regarding whether sexual orientation classifications should be reviewed under heightened scrutiny, including without limitation, that (a) lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination; (b) sexual orientation bears no relation to an individuals ability to perform or contribute to society; (c) sexual orientation is immutable, a core trait that a person may not be
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required to abandon (even if that were possible) as a condition of equal treatment; and (d) prejudice against gay people curtails the operation of the political process preventing this group from obtaining redress through legislative means. Defendants Position: At this time, without the benefit of discovery, Defendants must dispute the specific factual assertions each Plaintiff has made in the complaint regarding his or her personal experiences and feelings, loss of specific benefits, income, assets or inheritance, the payment of additional expenses solely because of the challenged marriage laws, the impact of the marriage laws upon their ability to obtain benefits to which they are presently entitled, and the impact of the marriage laws upon their family.
The parties anticipate that they will dispute the facts supporting (a) the state interests advanced by the marriage laws; (b) the nature of the state interests asserted in support of the constitutionality of the marriage laws; and (c) the existence of a rational basis between the Commonwealths interests and the marriage laws.
The parties further anticipate that they will dispute the facts underlying Plaintiffs position that sexual orientation classifications should be reviewed under heightened scrutiny.
The facts that the parties agree upon are as follows:
Defendant Poknis will not dispute that Plaintiffs Deb and Susan Whitewood came to the Office of the Register of Wills and applied for a marriage license or that their request was denied.
Defendants s tat e th at th ey are unable to agree on any other specific facts alleged in the Complaint absent discovery. 1.3
The legal issues the parties dispute are as follows: Plaintiffs Position:
Plaintiffs dispute any contention by any Defendant that he or she is not a proper party to this action. Plaintiffs submit that any reliance by any Defendant on Ex Parte Young and its progeny in the Third Circuit is
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misplaced. Further, Plaintiffs note that they have submitted discovery requests regarding the Office of the Governors involvement with the application or enforcement of Pennsylvanias ban on marriage for same-sex couples, including without limitation any involvement of the Office of the Governor in the Department of Healths decision to file suit against the Montgomery County Register of Wills. See Department of Health v. Hanes, No. 379 M.D. 2013 (Commw. Ct., filed July 30, 2013) (seeking and obtaining mandamus relief against the Clerk of the Orphans Court of Montgomery County, preventing further issuance of marriage licenses to same-sex couples). Plaintiffs understand that some Defendants dispute whether the exclusion of same-sex couples from marriage violates Plaintiffs constitutional right to equal protection. Plaintiffs understand that some Defendants dispute whether the fundamental constitutional right to marry can be limited to only oppositesex couples. Plaintiffs understand that some Defendants dispute the level of constitutional scrutiny to be applied in adjudicating Plaintiffs claims. Plaintiffs contend that heightened scrutiny applies because the exclusion of same-sex couples from marriage classifies on the basis of sexual orientation and sex (both of which trigger heightened scrutiny) and burdens a fundamental right. Plaintiffs understand that some Defendants dispute whether 23 Pa.C.S. 1102 and/or 1704 satisfy any level of constitutional scrutiny. Specifically, Plaintiffs contend that 23 Pa.C.S. 1102 and/or 1704 fail to satisfy any level of scrutiny, including rational basis review. Plaintiffs dispute all other grounds for dismissal set forth by any Defendant. Defendant Kathleen Kanes Position: Defendant Kane maintains that Plaintiffs lack standing against her and that her general duties pursuant to the Commonwealth Attorneys Act are insufficient to support a cause of action against her in challenging the
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marriage law. Other Defendants Positions: Defendant Corbett maintains that any generalized duties that he has by virtue of his role as chief executive officer of the Commonwealth pursuant to Article IV, Section 2 of the Pennsylvania Constitution do not provide Plaintiffs with cause to sue him in challenging the marriage laws.
Defendants Registers of Wills dispute whether Plaintiffs have Article III standing.
The parties dispute whether the Commonwealths definition of marriage violates Plaintiffs constitutional rights to equal protection or due process.
The parties dispute whether the marriage laws create a classification based on sexual orientation.
The parties dispute whether there is a fundamental constitutional right to marry a person of the same sex. The parties also dispute whether the U.S. Constitution requires Pennsylvania to adopt any particular nongendered definition of marriage.
The parties dispute the level of constitutional scrutiny to be applied in adjudicating Plaintiffs claims.
The parties dispute whether the marriage laws satisfy any level of constitutional scrutiny.
Defendants dispute whether Plaintiffs may recover attorneys fees. Defendants also dispute whether Plaintiffs complaint fails to state a claim upon which relief may be granted.
Plaintiffs and Defendant Poknis dispute whether she has immunity for Plaintiffs claims.
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The legal issues the parties agree upon are as follows:
The parties have not yet identified any legal issues upon which they agree.
1.4 Identify any unresolved issues as to service of process, personal jurisdiction, subject matter jurisdiction, or venue:
Defendant Poknis intends to file a Motion to Dismiss based on jurisdiction and venue.
Defendant Petrille has not put forth any such issue, but h e reserves the right to do so within the time prescribed by the rules, or order of this court, as well as the right to join any such matter put forth by any other party.
1.5
Identify any named parties that have not yet been served: None.
1.6
Identify any additional parties that: Plaintiff(s) intend to join:
Depending on the arguments and defenses asserted by Defendants, Plaintiffs may add additional parties, including without limitation, additional state officials and heads of certain departments of the Commonwealth government. Should certain Plaintiffs obtain a marriage license in another jurisdiction during the pendency of this lawsuit, Plaintiffs may join as additional plaintiffs certain other couples who are not yet married but seek to be married in Pennsylvania, and they may add as additional defendants certain registers of wills or clerks of orphans courts of select counties of the Commonwealth who deny any marriage license applications by any new plaintiffs. In neither instance do Plaintiffs anticipate that addition of any such parties will impact the schedule of this action.
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Defendant(s) intend to join: Defendants do not intend to join any additional parties at this time, but reserve the right to do so within appropriate time constraints set by rule or order. 1.7 Identify any additional claims: None. 2.0 Disclosures The undersigned counsel certify that they have exchanged the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1). 2.1 Disclosed by Plaintiffs: Name Plaintiffs Thomas W. Corbett Kathleen Kane Michael Wolf Mary Jo Poknis Donald Petrille, Jr. Beverly D. Mackereth Dan Meuser Rob McCord Pennsylvania Employees Benefit Trust Fund Pennsylvania businesses and/or related organizations (e.g., trade groups) Title/Position See Complaint Governor Attorney General Secretary of Health Washington County Register of Wills Bucks County Register of Wills and Clerk of Orphans Court Secretary of Public Welfare Secretary of Revenue Pennsylvania State Treasurer Trustees, officers and directors Separately for each party, list by name and title/position each person whose identity has been disclosed.
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Disclosed by Defendant(s): Name Marina Matthew Title/Position State Registrar and Director of the Bureau of Health Statistics & Research, Department of Health Management Technician First Deputy Clerk Washington County Register of Wills and Clerk of the Orphans Court Clerk in the Washington County Register of Wills Office
Kylee Higgins Colleen Strunk Lisamarie Lewendowski Mary Jo Poknis
Susie Archer

3.0 Early Motions
Identify any motion(s) whose early resolution would likely have a significant effect either on the scope of discovery or other aspects of the litigation: Nature of Motion Motion to Dismiss Moving Party Anticipated Filing Date September 30, 2013 September 30, 2013 September 30, 2013 September 30, 2013
Governor Corbett & Secretary Wolf Motion to Dismiss Donald Petrille, Jr. Motion to Dismiss and Mary Jo Poknis Change of Venue Motion to Dismiss Attorney General Kane
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4.0
Discovery 4.1 Briefly describe any discovery that has been completed or is in progress:
By Plaintiffs:
Interrogatories. On September 19, 2013, Plaintiffs served upon Defendants four interrogatories seeking information regarding what state interests, if any, Defendants contend are advanced by 23 Pa.C.S. 1102 and/or 1704, the relationship of the challenged laws and practices to those state interests, and the facts in support of those contentions. Plaintiffs First Set of Interrogatories (Nos. 1-4) is attached hereto as Exhibit 1.
Defendants responses to these interrogatories are due on October 22, 2013.
Document Discovery. On September 19, 2013, Plaintiffs also served nine document requests seeking any documents supportive of Defendants responses to the aforementioned interrogatories, as well as documents regarding the states provision of domestic partnership benefits to state employees, the states policies and practices regarding the placement of children and youth with same-sex couples, hate crimes data, and communications by or with the Office of the Governor regarding the enforcement or application of 23 Pa.C.S. 1102 and/or 1704 on or since June 26, 2013. Plaintiffs First Set of Requests for Production of Documents (Nos. 1-9) is attached hereto as Exhibit 2.
Defendants responses to these document requests are due on October 22, 2013. Depending on the positions taken by Defendants, Plaintiffs may serve subpoenas on certain other entities, including other departments of the Commonwealth government not named as defendants in this action. Depositions. Plaintiffs have not yet noticed any depositions. Requests for Admissions. requests for admissions. Plaintiffs have not yet served any
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Plaintiffs understand that some Defendants have stated an intention to seek a protective order from this Court staying discovery pending resolution of their motions to dismiss. Discovery requests are pending to Defendants, and they were properly and timely served under the Federal and Local Rules. A stay of discovery would be inappropriate and is not merited here. It is any objecting Defendants burden to file such a motion, and none has done so. Plaintiffs reserve all rights to the extent any Defendant fails to respond timely to Plaintiffs discovery.
By Defendants:
Defendants intend to seek an order from the Court holding discovery in abeyance until the early motions are resolved, as they are potentially case ending motions. Defendants Corbett and Wolf maintain that there will be no deposition of the Governor without Court approval. Defendants intend to serve written discovery and to take depositions. The timing of this discovery and extent of this discovery is dependent upon the extent to which co-defendants can agree on the subject and type of discovery. Defendants are considering whether requests for admissions will be necessary, but in any event reserve all available forms of discovery.
4.2 Describe any discovery that all parties agree should be conducted, indicating for each discovery undertaking its purpose or what kinds of information will be developed through it (e.g., plaintiff will depose Mr. Jones, defendants controller, to learn what defendants revenue recognition policies were and how they were applied to the kinds of contracts in this case):
The parties agree that Defendants are entitled to obtain discovery of Plaintiffs regarding the allegations of the Complaint. The parties agree that they will negotiate regarding the specific depositions necessary. However, subject to reasonable limitations, the parties anticipate agreeing that (a) Plaintiffs may depose certain Defendants or their designees and other state employees or officials; and (b) that Defendants may depose all Plaintiffs.
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The parties also agree that each witness providing expert testimony may be deposed.
4.3
Describe any discovery that one or more parties want(s) to conduct but to which another party objects, indicating for each such discovery undertaking its purpose or what kinds of information would be developed through it:
Plaintiffs Position: Plaintiffs are entitled to discovery regarding any state interests that any Defendant contends are advanced by 23 Pa.C.S. 1102 and/or 1704, how the challenged laws advance those interests, and facts underlying those contentions. Defendants contentions will help inform what, from whom and from where Plaintiffs seek any additional discovery. Plaintiffs have already served written discovery seeking such information. Plaintiffs also are entitled to discovery regarding whether sexual orientation is a suspect classification. Plaintiffs have already served written discovery seeking such information. Plaintiffs understand that some Defendants will insist that Plaintiffs are not entitled to this discovery because they are legislative facts. Those Defendants are mistaken. The distinction between legislative and adjudicative facts is irrelevant to the right to obtain discovery. That distinction concerns the standard of review afforded to a trial courts findings of fact; it does not pertain to a partys right to gather and present evidence, or to challenge the evidence or contentions of an opposing party. A plaintiff in a constitutional case may present facts and conduct discovery in order to carry any burden of persuasion. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) ([P]arties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim it is irrational.); Centifanti v. Nix, 661 F. Supp. 993, 994-95 (E.D. Pa. 1987) (holding that it would be premature to grant a motion to dismiss and allowing plaintiff discovery to gather evidence to rebut the claim that there is a rational basis for the disparate treatment). If or when any Defendant files a motion for a protective order regarding this issue, Plaintiffs will respond accordingly.
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Defendants Position: Defendants do not agree that discovery should be conducted regarding these questions. This question hinges on matters of legislative facts, not adjudicative facts. The distinction is recognized by the Supreme Court. Lockhart v. McCree, 476 U.S. 162, 168-69 n.3 (1986).3 Legislative facts such as are at issue here do not require discovery. See Penn Adver. of Baltimore, Inc. v. Mayor & City Council of Baltimore, 63 F.3d 1318, 1323 (4th Cir. 1995) judgment vacated sub nom. on other grounds Penn Adver. of Baltimore, Inc. v. Schmoke, 518 U.S. 1030 (1996).
4.4
Identify any subject area limitations on discovery that one or more parties would like imposed, at the first stage of or throughout the litigation:
For the reasons stated above, Plaintiffs dispute Defendants request for any limitation on discovery related to legislative versus facts, and reserve the right to respond to any motion for a protective order filed by Defendants on this issue.
Adjudicative facts are facts about the parties and their activities . . . , usually answering the questions of who did what, where, when, how, why, with what motive or intentthe types of facts that go to a jury in a jury case, or to the fact finder in a bench trial. Perry v. Brown, 671 F.3d 1052, 1075 (9th Cir. 2012), vacated and remanded by Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). In contrast to adjudicative facts, [l]egislative facts are general facts which help the tribunal decide questions of law and policy, are without reference to specific parties, and need not be developed through evidentiary hearings. Libertarian Natl Comm., Inc. v. Federal Election Commn, C . A . N o . 1 1 - c v - 5 6 2 , 2013 WL1097792, *2 (D.D.C. 2013) (quoting Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992), and Assn of Natl Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979)). A legislative fact is not a question specifically related to one case or controversy; it is a question of social factors and happenings. Dunigan v. City of Oxford, Miss., 718 F.2d 738, 748 (5th Cir. 1983). A court generally relies upon legislative facts when it purports to develop a particular law or policy and thus considers material wholly unrelated to the activities of the parties. 12 Fed. Proc., L. Ed. 33:52.. . . .
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For the reasons stated above, Defendants request that discovery be limited to adjudicative facts that are capable of being found by a court through the clash of proofs presented in adjudication. Perry v. Brown, 671 F.3d 1052, 1075 (9th Cir. 2012), vacated and remanded by Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). 4.5 For each of the following discovery tools, recommend the perparty or per-side limitation (specify a number) that should be fixed, subject to later modification by stipulation or court order on an appropriate showing (where the parties cannot agree, set forth separately the limits recommended by plaintiff(s) and by defendant(s)): 4.5.1 depositions (excluding experts) to be taken by: The parties agree that subject to further stipulation by the parties or leave of court, Plaintiffs as a side are entitled to take ten (10) non-expert depositions. The parties agree that subject to further stipulation by the parties or leave of court, in addition to the depositions of all Plaintiffs, Defendants as a side are entitled to take ten (10) nonexpert depositions. 4.5.2 interrogatories to be served by:
The parties agree that, unless later stipulated or with leave of Court, each side will serve no more than 25 interrogatories.
4.5.3 document production requests to be served by:
The parties agree that, unless later stipulated or with leave of Court, each side will serve no more than 25 document production requests.
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4.5.4 requests for admission to be served by: The parties agree that, unless later stipulated or with leave of Court, each side will serve no more than 25 requests for admission. 4.6
Discovery of Electronically Stored Information
Counsel certify that they have generally conferred about the matters addressed in M.D. Pa. LR 26.1 and that they are in agreement about how those matters will be addressed in discovery.
Because no party anticipates widespread document discovery requiring extensive electronic searches, the parties anticipate conferring further as to the nature of how to handle any e-discovery. However, at a minimum, the responding party will produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. In cases of privilege, a producing party may produce a redacted image (if any of the privileged text or metadata where visible thereon), and/or a database with only those metadata fields that the party is required to produce. The parties agree to maintain a continuing dialogue regarding any ESI issues discussing where appropriate in response to any discovery seeking ESI, including the type and volume of the ESI, production deadlines, privilege issues and cost considerations.
5.
Protective Order The parties are discussing the terms for a stipulated protective order to govern the production of confidential information.
6.
Scheduling
The parties have been unable to agree upon a schedule for this action. The dates below reflect each partys proposal. Plaintiffs Position: Plaintiffs request that the Court schedule this non-jury matter for trial on February 17, 2014, and respectfully request relief from the Courts Standard Trial Matrix as set forth below. Plaintiffs proposed trial date of February 17, 2014, is 223 days after the filing of the Complaint on July 9,
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2013. This amount of time should be more than sufficient for all parties to prepare adequately for trial. First, Plaintiffs fundamental rights are at stake and they suffer irreparable harm every day. The status or lack thereof of marriage has a profound impact on their daily lives. Plaintiffs could have but did not seek preliminary injunctive relief because the importance of the issues deserves and requires development of a full record. But, given the irreparable harm at stake, an efficient and expedient schedule, with no undue delay, to reach a merits decision is necessary and appropriate. Second, Plaintiffs proposed schedule is 223 days (i.e., over 7 months) after commencement of this action, which generally is consistent with the Courts standard case management track (e.g., listing 240 days as a trial track option). Third, no party is seeking overly extensive discovery in this matter. Plaintiffs already have submitted targeted interrogatories and document requests to Defendants (attached hereto as Exhibits 1 and 2), and Plaintiffs are in the process of accumulating all documents referenced in their Initial Disclosures for production to Defendants. Some Defendants demand the ability to depose all 23 Plaintiff individuals and an additional 10 unnamed non-parties. Plaintiffs do not object to Defendants demands, and to the extent Defendants believe they need to take depositions of any Plaintiffs beyond the proposed November 29, 2013 fact discovery cut-off, Plaintiffs will not object to Defendants doing so.4 Fourth, Defendants Corbetts and Wolfs arguments to the contrary, the fact that that they did not hire their outside counsel until September to respond to this action, which was filed on July 9, should have no bearing
Counsel for the parties conducted their Rule 26(f) conference on September 9, 2013. Although counsel for all other parties were prepared to move forward on earlier dates, Defendants Corbett and Wolf were not. Even so, from September 9 to November 29 provides for an 11-week period of discovery, which should be more than sufficient for all parties to obtain the discovery they may need for trial. Further, as stated above, Plaintiffs will not object to Defendants taking of depositions of Plaintiffs after the proposed November 29, 2013 fact discovery cutoff.
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on the issues in this case management form or the case schedule going forward. Plaintiffs already have afforded Defendants numerous courtesies to accommodate Defendants Corbetts and Wolfs delays in retaining outside counsel to work with the Office of General Counsel (OGC) (e.g., delaying the date of the counsels Rule 26(f) conference despite Plaintiffs request that OGC represent Defendants Corbett and Wolf at the conference, extending Defendants deadline to respond to the Complaint for a second time, and agreeing to Defendants request to continue the Rule 16 conference). While Plaintiffs have endeavored and will continue to endeavor to provide all reasonable professional courtesies, Plaintiffs submit that the hiring date of outside counsel should no longer be a basis for delaying anything else in this matter, let alone a February 2014 trial date. Indeed, the Court need look no further than the fact that subsequent to the filing of this Complaint, OGC without any outside counsel filed against the Montgomery County Register of Wills, two complaints, two motions for expedited relief, two motions for summary disposition, an opposition to a motion of intervention by same-sex couples who were issued marriage licenses by the Montgomery County Register of Wills, and argued the motions before the Commonwealth Court, all by September 4, 2013.5 Finally, Plaintiffs also note that there is no need at this juncture to budget additional time within the case management schedule for summary judgment briefing. The Rule 12(b)(6) grounds for dismissal identified by Defendants to date are virtually certain to mirror any Rule 56 motions any Defendants may thereafter file. But, briefing the same legal issues twice will serve little purpose other than to delay the trial. If, at the close of discovery (and after already being unsuccessful on motions to dismiss), Defendants believe they are entitled to summary judgment for grounds other than the same legal bases they are offering in their respective Rule 12(b)(6) motions, Defendants should be permitted to move the Court at that time for leave to file a motion for summary judgment and for relief from the trial schedule that may be just and proper.
Plaintiffs disagree with the contention of some Defendants that the fact there are multiple Defendants means that discovery should take longer. Indeed, if anything, this enables the Defendants who share the same views of the constitutionality of the challenged laws and practices to share resources and save time, not expand the time needed for discovery.
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Defendant(s) Position: Defendants request that this Court schedule this matter for the Courts February 2015 Trial Schedule, which is more reasonable given the size and scope of pre-trial discovery. The aggressive discovery schedule proposed by Plaintiffs is unrealistic given the number of Plaintiffs to be deposed and the written discovery they seek, as well as the need to conduct expert discovery. Defendants are entitled to depose each Plaintiff. Based upon the aggressive discovery schedule proposed by Plaintiffs, there are only 39 business days to conduct the depositions of the 23 identified plaintiffs without regard to any scheduling conflicts, not to mention any additional fact witnesses Plaintiffs may identify. Moreover, Plaintiffs have proposed an unreasonable time to conduct expert discovery; and the exchange of reports which falls during the winter holiday period also complicates the availability of counsel and the experts of all parties. Plaintiffs position that this matter does not include any extraordinary amount of discovery by any party does not take into account the defense discovery plan. All Defendants are not represented by the same counsel, and coordination of discovery among defense counsel therefore will be necessary. Plaintiffs aggressive discovery plan does not take this into account. Plaintiffs also ignore the possibility of nonparty discovery, which may involve motion practice. Plaintiffs concede that the importance of the issues requires the development of a full record, but they ignore the unrealistic nature of the schedule they propose in developing (1) a full record for the court, (2) with a fair and full opportunity for the defense to conduct discovery, and (3) sufficient time for the court to thoughtfully address any dispositive motions or discovery disputes. Defendants believe that an August 29, 2014, Discovery Deadline provides for an orderly and efficient discovery plan, taking into account the types of discovery anticipated by the parties, including the exchange of expert reports and depositions. Plaintiffs are also proposing that the Court entertain amicus filings on behalf of Plaintiffs position. Depending upon the stage at which these filings are provided, the defense may need an opportunity to evaluate the
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empirical data relied upon in connection with those filings or object to the usage of such data. This may prompt additional motion practice, making Plaintiffs proposed dates even more unrealistic.
6.1
Final date for joining additional parties: Plaintiffs Position: November 1, 2013. However, depending on the arguments and defenses asserted by Defendants and depending on changed circumstances in the lives of Plaintiffs (see 1.6, supra), Plaintiffs may need to add additional defendants or plaintiffs after November 1, 2013. Any additional parties will not materially affect the evidence to be presented at trial or legal analysis of the dispute. Thus, Plaintiffs do not anticipate that the addition of any such parties will impact the schedule of this action or trial preparation efforts. Defendants Position: December 30, 2013. Governor Corbett intends to file a motion to dismiss him from the case entirely. It is likely that Plaintiffs will then add additional Commonwealth defendants. Any preliminary discovery that Plaintiffs might serve may prompt the addition of unanticipated parties that will need to be added. Attorney General Kane also intends to seek her dismissal from the case, but that should not affect the joining of additional parties.
6.2
Final date for amending pleadings: Plaintiffs Position: November 1, 2013. However, as explained in paragraph 6.1, supra, Plaintiffs addition of more defendants or plaintiffs may necessitate the filing of an amended pleading after November 1, 2013. At this time, Plaintiffs do not anticipate adding any new substantive claims, but rather, simply adding parties.
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Defendant(s) Position: December 30, 2013. 6.3 All fact discovery commenced in time to be completed by: Plaintiffs Position: November 29, 2013. Defendant(s) Position: August 29, 2014.
6.4
All potentially dispositive motions should be filed by: Plaintiffs Position: Upon a demonstration of good cause to the Court, including a showing that such motion will not be duplicative of any grounds offered in Defendants Rule 12(b)(6) motions to dismiss. Defendant(s) Position: October 1, 2014.
6.5
Reports from retained experts due: Plaintiffs Position: Simultaneous exchange of Federal Rule of Civil Procedure 26(a)(2) expert disclosures and reports on November 29, 2013. Simultaneous exchange of Federal Rule of Civil Procedure 26(a)(2) rebuttal expert disclosures and reports on January 3, 2014.
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Defendants argument against the filing of simultaneous reports rests solely upon the statement that Plaintiffs bear the burden of proof. That analysis is flawed. First, if the Court applies heightened scrutiny, then it will be Defendants burden to demonstrate the constitutionality of the states prohibition of marriage for same-sex couples. Given that one of the issues for this Court to decide is the level of scrutiny (and, thus, who bears the burden of proof) and that testimony at trial will go toward demonstrating what constitutional scrutiny should apply, it makes no sense to force one party to offer pre-trial expert reports before the other. Second, a simultaneous exchange of expert reports with a simultaneous exchange of rebuttal reports allows for an efficient trial schedule, and prejudices no party. The proposal of some Defendants for four rounds of expert reports during a sixth month period of time is wasteful and just delays trial. Defendant(s) Position: Plaintiffs provide initial expert disclosures and reports on December 30, 2013. Defense expert disclosures and reports on March 28, 2014. Plaintiffs provide rebuttal expert disclosures by May 1, 2014. Defense provides response to rebuttal expert disclosures by May 29, 2014. Defendants do not agree to the simultaneous exchange of expert disclosures and reports. Plaintiffs carry the burden of persuasion. It is for Plaintiffs to put forward their proof, and for Defendants to respond.
6.6
Supplementations due: The parties agree expert supplementations, if any, shall be due
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at a time stipulated to by the parties or upon leave of court. 6.7
All expert discovery, including depositions, commenced in time to be completed by: Plaintiffs Position:
Defendants Position: July 30, 2014
January 30, 2014
6.8
This case may be appropriate for trial in approximately: X (Plfs.) 240 Days from the filing of the action in this court 365 Days from the filing of the action in this court X (Defs.) 540 Days from the filing of the action in this court
Plaintiffs Position: Plaintiffs proposed schedule provides for a 223-day period from the filing of the Complaint to the first day of trial on February 17, 2014. For the reasons stated above, see 6, supra, Plaintiffs submit such a date is just and proper for the orderly disposition of this action.
Defendant(s) Position: Defendants position allows for the full development of the record for both sides in this important constitutional matter and provides the Court with sufficient time to address the early and potentially dispositive motions. Defense counsel for the Commonwealth parties has only recently been engaged, and those parties should not be prejudiced by an ambitious schedule that is impractical and unrealistic given the number of Plaintiffs, the utilization of experts, the anticipation of amicus filings and the significant issues raised by Plaintiffs in their complaint.
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6.9
Suggested Date for the final Pretrial Conference: Plaintiffs Position: February 3, 2014 Defendant(s) Position: January 2, 2015
6.10 Suggested Date for Trial: Plaintiffs Position:
Defendant(s) Position: February 3, 2015
February 17, 2014 7.0
Certification of Settlement Authority (All Parties Shall Complete the Certification) I hereby certify that the following individual(s) have settlement authority:
For Plaintiffs:
Mark A. Aronchick HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER One Logan Square, 27th Floor Philadelphia; PA 19103 (215) 568-6200 Counsel for Plaintiffs
Witold J. Walczak ACLU FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736 Counsel for Plaintiffs
For Defendants: William H. Lamb Lamb McErlane PC 24 East Market Street P.O. Box 565 West Chester, PA 19381-0565
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(610) 430-8000 Counsel for Defendants Corbett and Wolf Robert J Grimm Swartz Campbell LLC 4750 U.S. Steel Tower 600 Grant Street Pittsburgh, PA 15219 (412) 560-3267 Counsel for Defendant Poknis Nathan D. Fox Begley Carlin & Mandio LLP 680 Middletown Blvd. Langhorne, PA 19047 (215) 750-0110 Counsel for Defendant Petrille M. Abbegael Giunta Deputy Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 (717) 787-1179 Counsel for Defendant Kane 8.0 Alternative Dispute Resolution (ADR) The parties do not believe that this is an appropriate case for alternative dispute resolution. 9.0
Consent to Jurisdiction by a Magistrate Judge The parties do not agree to jurisdiction by a magistrate judge of this court.
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10.0 Other Matters Plaintiffs: In light of the substantial interest in this case in the public, academic, business, and other sectors, Plaintiffs submit that the submission of amicus briefs to the Court would aid in the Courts resolution of the constitutional claims, including without limitation the submission of such briefs on a post-trial basis when the parties may file post-trial findings of fact and conclusions of law. To be clear, however, Plaintiffs do not favor the allowance of amicus briefs if doing so would delay the commencement of trial. Regarding Defendants request that the Middle District be designated now as a default location for depositions, Plaintiffs do not believe this is necessary or warranted. Counsel, the parties, and potentially other witnesses (e.g., other state officials, experts, etc.) reside throughout and outside of the state. Despite the parties disagreements identified in this Order, Plaintiffs anticipate that all counsel will succeed in working together amicably on the designation of locations for depositions so as to minimize the burdens on the parties and counsel. Regarding Defendants statement that they expect to seek Plaintiffs consent to releasing personal information to counsel for Defendants, Plaintiffs have not yet received any such request from Defendants. Plaintiffs will review Defendants request if or when it is received. Regardless, Plaintiffs have not waited for discovery requests from Defendants and already are accumulating the documents referenced in their Initial Disclosures to be prepared for production. Plaintiffs will also request the admission to the bar of the Middle District of Pennsylvania for certain of their counsel.
Defendants: Defendants propose that the Court enter a specific order governing amicus filings, requiring that, if granted leave to be filed, they be filed at the same time as the opening brief in support of a particular motion, and granting the responding party additional time to reply to amicus briefs.
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Defendants expect to seek releases/consent or other cooperation from Plaintiffs for access to tax, medical or adoption records in connection with assertions made in the Complaint regarding harm and effect in connection with the marriage laws. Defendants propose that all depositions of parties will occur in the Middle District of Pennsylvania unless otherwise agreed to by the parties. 11.0 Identification of Counsel Lead counsel for each party are the following: Dated: Oct. 4, 2013 HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER /s/ Mark A. Aronchick Mark A. Aronchick One Logan Square, 27th Floor Philadelphia; PA 19103 (215) 568-6200 ECF User Attorney for Plaintiffs
Dated: Oct. 4, 2013
ACLU FOUNDATION OF PENNSYLVANIA

/s/ Witold J. Walczak Witold J. Walczak 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736 ECF User Attorney for Plaintiffs
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Dated: Oct. 4, 2013
LAMB MCERLANE PC /s/ William H. Lamb William H. Lamb 24 East Market Street P.O. Box. 565 West Chester, PA 19381 (610) 430-8000 ECF User Attorney for Defendants Corbett and Wolf
Dated: Oct. 4, 2013
OFFICE OF ATTORNEY GENERAL

/s/ M. Abbegael Giunta M. Abbegael Giunta Deputy Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 (717) 787-1179 ECF User Attorney for Defendant Kane Dated: Oct. 4, 2013 BEGLEY, CARLIN & MANDIO, LLP

/s/ Nathan D. Fox Nathan D. Fox 680 Middletown Boulevard Langhorne, PA 19047 (215) 750-0110 ECF User Attorney for Defendant Petrille Dated: Oct. 4, 2013 SWARTZ CAMPBELL LLC /s/ Robert J. Grimm Robert J. Grimm 600 Grant Street Pittsburgh, PA 15219 (412) 560-3267 Counsel for Defendant Poknis
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Case 1:13-cv-01861-JEJ Document 38-1 Filed 10/04/13 Page 1 of 12
EXHIBIT 1
DEB WHITEWOOD and SUSAN WHITEWOOD,FREDIA HURDLE and LYNN HURDLE,EDWIN HILL and DAVID PALMER,HEATHER POEHLER and KATH POEHLER,FERNANDO CHANG-MUY and LEN RIESER,DAWN PLUMMER and DIANA POLSON,ANGELA GILLEM and GAIL LLOYD,HELENA MILLER and DARA RASPBERRY,RON GEBHARDTSBAUER and GREG WRIGHT,MARLA CATTERMOLE and JULIA LOBUR,MAUREEN HENNESSEY,and A.W. AND K.W., minor children, by and through their parents and next friends, DEB WHITEWOOD and SUSAN WHITEWOOD, Plaintiffs, v. THOMAS W. CORBETT,in his official capacity as Governor ofPennsylvania; MICHAEL WOLF,in his official capacity as Secretary ofthe Pennsylvania Department of Health; KATHLEEN KANE,in her official capacity as Attorney General ofPennsylvania; MARY JO POKNIS,in her official capacity as Register of Wills of Washington County; and DONALD PETRILLE, JR., in his official capacity as Register of Wills and Clerk of Orphans' Court of Bucks County, Defendants.
Civil Action No. 13-1861-JEJ
PLAINTIFFS' FIRST SET OF INTERROGATORIES DIRECTED TO ALL DEFENDANTS
Plaintiffs Deb Whitewood and Susan Whitewood, Fredia Hurdle and Lynn Hurdle, Edwin Hill and David Palmer, Heather Poehler and Kath Poehler, Fernando Chang-Muy and Len Rieser, Dawn Plummer and Diana Poison, Angela Gillem and Gail Lloyd, Helena Miller and Dara Raspberry, Ron Gebhardtsbauer and Greg Wright, Marla Cattermole and Julia Lobur, Maureen Hennessey, and A.W. and K.W.("Plaintiffs"), request that, pursuant to Rules 26 and 33 ofthe Federal Rules of Civil Procedure, defendants Thomas W. Corbett, in his official capacity as Governor ofPennsylvania; Michael Wolf, in his official capacity as Secretary ofthe Pennsylvania Department of Health; Kathleen Kane, in her official capacity as Attorney General ofPennsylvania; Mary Jo Poknis, in her official capacity as Register of Wills of Washington County; and Donald Petrille, Jr., in his official capacity as Register of Wilis and Clerk of Orphans' Court of Bucks County, answer the following Interrogatories, separately and under oath, within thirty(30) days ofservice. INSTRUCTIONS AND DEFINITIONS 1. These Interrogatories seek information current as ofthe date of
service and to the full extent permitted under the Federal Rules of Civil Procedure. As these Interrogatories are of a continuing nature, you are obligated to promptly supplement or correct any response that is incomplete, inaccurate, or which requires an additional response to comply with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(e). -2-
2.
Respond to each Interrogatory in full. If you cannot do so, respond to
the extent possible, explaining why you cannot respond completely and stating any knowledge, information, or belief you have concerning the portion ofthe Interrogatory to which you cannot respond in full. 3. In construing these Interrogatories,(i)the words "and" and "or" shall
be construed either disjunctively or conjunctively so as to bring within the scope of these requests all documents that otherwise might be construed to be outside its scope;(ii) the use of a word in its singular form shall be deemed to include the plural and vice versa;(iii) the words "any" and "all" shall be read to mean each and every;(iv)the present,tense of any verb shall include its past tense and vice versa; and(v)the words "and" and "or" mean "and/or" and should be read both ways so as to encompass both constructions and call for answers to be provided to both constructions. "Describe with particularity" means: (a) describe fully by reference to underlying facts rather than by ultimate facts or conclusions of fact or law; and (b)particularize as to (i) time,(ii) place, and (iii) manner. 4. The terms "referring," "related," "relate," "concerning," and
"relating" are to be construed in their broadest possible sense. For example, they mean, without limitation, comprising, referring to, relating to, responding to, implicating, having any relationship to, pertaining to, evidencing or constituting evidence of, regarding, affecting or affected by, connected to, related to, associated with, whether directly or indirectly, or in whole or in part, the subject matter ofthe
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particular request. 5. In the event that you assert that you lack knowledge sufficient to
answer an Interrogatory, set forth the reasonable inquiry made to obtain the information, describing the efforts made and the reasons why said inquiry failed to obtain the requested information. State which answers(or parts thereof are based upon personal knowledge and which answers(or parts thereof are based upon information and belief. For each answer(or part thereof based upon information and belief, describe in detail the basis for the information or belief. 6. As required by Rule 26(b)(5) ofthe Federal Rules of Civil Procedure,
with respect to any information you assert to be protected or privileged, you must expressly identify the nature ofthe privilege asserted, indicate the factual basis for the privilege, and describe the nature and the content ofthe allegedly-privileged information in sufficient detail to enable others to assess the applicability ofthe asserted privilege.
INTERROGATORIES INTERROGATORY NO. 1: If you contend that 23 Pa. C.S. 1102 and/or 1704 are constitutional, identify and describe with particularity each and every state interest that you contend is advanced by 23 Pa. C.S. 1102 and/or 1704, and include in your answer for each such state interest: a. A detailed explanation of why you contend that 23 Pa. C.S. 1.102 and/or 1704 furthers that state interest, and all facts in support of your explanation; b. A statement of whether you contend that the state interest is a compelling government interest and that 23 Pa. C.S. 1102 and/or 1704 is closely tailored to that interest, and all facts in support of your contention; c. A statement of whether you contend that the state interest is an important government interest and that 23 Pa. C.S. 1102 and/or 1704 is substantially related to that interest, and all facts in support of your contention; and d. A statement of whether you contend that the state interest is a legitimate government interest and that 23 Pa. C.S. 1102 and/or 1704 is rationally related to that interest, and all facts in support of your contention.
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Response:
INTERROGATORY NO.2: To the extent any state interest that you identified in response to Interrogatory No. 1 is related to protecting the Commonwealth ofPennsylvania and/or its taxpayers from adverse economic impacts, describe with particularity how the Commonwealth and/or its taxpayers would suffer adverse economic impacts if same-sex couples were permitted to marry and/or have their marriages recognized in Pennsylvania, and all facts (including all calculations) supporting this contention. Response:
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INTERROGATORY NO.3: To the extent any state interest that you identified in response to Interrogatory No. 1 is related to protecting Pennsylvania businesses, describe with particularity how Pennsylvania businesses would be harmed financially or otherwise if same-sex couples were permitted to marry and/or have their marriages recognized in Pennsylvania, and all facts (including all calculations) supporting this contention. Response:
~:~
INTERROGATORY NO.4: To the extent any state interest you identified in response to Interrogatory No. 1 is related to protecting or promoting the well-being of children or families in the Commonwealth ofPennsylvania, describe with particularity all facts supporting the contention that the prohibition of marriage by same-sex couples and/or the prohibition on the recognition ofthe marriages of same-sex couples in Pennsylvania protects or promotes the interests of any children or families in Pennsylvania. Response:
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER
Mark A. Aronchick John S. Stapleton Dylan J. Steinberg Rebecca S. Melley One Logan Square, 27th Floor Philadelphia, PA 19103 (215)568-6200 James D. Esseks Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212)549-2500 Witold J. Walczak ACLU FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 (412)681-7736 Mary Catherine Roper Molly Tack-Hooper ACLU FOUNDATION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 (215)592-1513 Seth F. Kreimer 3400 Chestnut St. Philadelphia, Pa. 19104 (215)898-7447
Counselfog Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that, on this 19th day of September, 2013, I caused to be served an original and two(2)true and correct copies of the foregoing Plaintiffs' First Set ofInterrogatories Directed to All Defendants upon the following by First Class mail, with courtesy copy to all counsel of record by e-mail: William H. Lamb, Esquire Lamb McErlane PC 24 East Market Street P.O. Box 565 West Chester,PA 19381 Counselfog Defendants Corbett and Wolf M. Abbegael Giunta, Deputy Attorney General Gregory R. Neuhauser, Chief Deputy Attorney General Office of Attorney General Strawberry Square, 15th Floor Harrisburg,PA 17120 Counselfog Defendant Kane Robert Grimm,Esquire Thomas J. Jezewski, Esquire Swartz Campbell LLC 4750 US Steel Tower 600 Grant Street Pittsburgh, PA 15219 Counselfog Defendant Poknis Nathan D. Fox, Esquire Begley Carlin & Mandio LLP 680 Middletown Blvd. Langhorne,PA 19047 Counselfog Defendant Pet~ille apleton 9
Jo
S.
EXHIBIT 2
DEB WHITEWOOD and SUSAN WHITEWOOD,FREDIA HURDLE and L~'NN HURDLE,EDWIN HILL and DAVID PALMER,HEATHER POEHLER and KATH POEHLER,FERNANDO CHANG-MUY and LEN RIESER,DAWN PLUMMER and DIANA POLSON,ANGELA GILLEM and GAIL LLOYD,HELENA MILLER and DAR.A RASPBERRY,RON GEBHARDTSBAUER and GREG WRIGHT,MARLA CATTERMOLE and JULIA LOBUR,MAUREEN HENNESSEY,and A.W. AND K.W., minor children, by and through their parents and next friends, DEB WHITEWOOD and SUSAN WHITEWOOD, Plaintiffs, v. THOMAS W. CORBETT,in his official capacity as Governor ofPennsylvania; MICHAEL WOLF,in his official capacity as Secretary ofthe Pennsylvania Department of Health; KATHLEEN KANE,in her official capacity as Attorney General ofPennsylvania; MARY JO POKNIS,in her official capacity as Register of Wilis of Washington County; and DONALD PETRILLE, JR., in his official capacity as Register of Wills and Clerk of Orphans' Court of Bucks County, Defendants.
Civil Action No. 13-1861-JEJ
PLAINTIFFS'FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS DIRECTED TO ALL DEFENDANTS
Plaintiffs Deb Whitewood and Susan Whitewood, Fredia Hurdle and Lynn Hurdle, Edwin Hill and David Palmer, Heather Poehler and Kath Poehler, Fernando Chang-Muy and Len Rieser, Dawn Plummer and Diana Polson, Angela Gillem and Gail Lloyd, Helena Miller and Dara Raspberry, Ron Gebhardtsbauer and Greg Wright, Marla Cattermole and Julia Lobur, Maureen Hennessey, and A.W. and K.W.("Plaintiffs"), request that, pursuant to Rules 26 and 34 ofthe Federal Rules of Civil Procedure, defendants Thomas W. Corbett, in his official capacity as Governor ofPennsylvania; Michael Wolf, in his official capacity as Secretary of the Pennsylvania Department of Health; Kathleen Kane, in her official capacity as Attorney General ofPennsylvania; Mary Jo Poknis, in her official capacity as Register of Wills of Washington County; and Donald Petrille, Jr., in his official capacity as Register of Wills and Clerk of Orphans' Court of Bucks County, produce the following documents for Plaintiffs' inspection and copying at the offices of Hangley Aronchick Segal Pudlin &Schiller, One Logan Square, 27th Floor, Philadelphia, Pennsylvania 19103-6933, within thirty(30)days of service. INSTRUCTIONS AND DEFINITIONS 1. Unless otherwise specified, each document request herein seeks
production ofthe documents called for in their entirety, including all attachments or affixations thereto. If any of the documents cannot be produced in full, you are requested to produce them to the extent possible. 2. If there are no documents responsive to any particular request, please -2-
so state in response to that request. 3. As these requests are of a continuing nature, you are obligated to
promptly supplement or correct any response that is incomplete, inaccurate, or which requires an additional response to comply with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(e). 4. In construing these requests,(i)the words "and" and "or" shall be
construed either disjunctively or conjunctively so as to bring within the scope of these requests all documents that otherwise might be construed to be outside its scope;(ii) the use of a word in its singular form shall be deemed to include the plural and vice versa;(iii) the words "any" and "all" shall be read to mean each and every;(iv) the present tense of any verb shall include its past tense and vice versa; and(v)the words "and" and "or" mean "and/or" and should be read both ways so as to encompass both constructions and call for answers to be provided to both constructions. 5. The terms "referring," "related," "relate," "concerning," and
"relating" are to be construed in their broadest possible sense. For example,they mean, without limitation, comprising, referring to, relating to, responding to, implicating, having any relationship to, pertaining to, evidencing or constituting evidence of, regarding, affecting or affected by, connected to, related to, associated with, whether directly or indirectly, or in whole or in part, the subject matter ofthe particular request.
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6.
The term "document" shall be construed to the broadest extent
possible and is used in the broadest possible sense. For example, the term "document" includes, without limitation, any written, printed, typed, photostatted, photographic, computerized, electronic, recorded or otherwise reproduced communication or representation, whether composed of letters, words, numbers, pictures, sounds, or symbols, or any combination thereof, all copies or duplicates of documents contemporaneously or subsequently created that have any nonidentical notes or other markings, all correspondence, memoranda, e-mails, notes, records, letters, envelopes, telegrams, messages, studies, analyses, contracts, agreements, working papers, summaries, statistical statements, invoices, receipts, financial statements, work papers, accounts, analytical records, reports and/or summaries ofinvestigations, trade letters, press releases, comparisons, books, calendars, diaries, articles, magazines, newspapers, booklets, brochures, pamphlets, circulars, bulletins, notices, drawings, diagrams, instructions, notes or minutes of meetings, or other communications of any type, whether in physical or electronic form and regardless of how stored and translated, if necessary, into usable form, as well as any preliminary versions, drafts, or revisions of any of the foregoing. 7. The term "communication(s)" shall mean and include every manner
or means of disclosure, transfer, or exchange, and every disclosure, transfer or exchange of information whether orally or by document or face-to-face, by telephone, telecopier, mail, computer communication (i.e., e-mail or instant
~~
messages), personal delivery, video or audio conference, or otherwise, and whether sent or received. 8. The term "Your Office" shall include the Defendant in the above-
captioned action answering these requests, as well as all employees, officers, directors, and members ofthat Defendant's office or department, and any of its attorneys, representatives, agents and all other persons or entities acting on behalf of the foregoing. With respect to Defendant Corbett, specifically, the phrase "Your Office" shall include the Office of the Governor and all other Commonwealth Offices under the purview ofthe Governor, as well as the employees, officers, directors, and members ofthose Commonwealth Offices, and any attorneys, representatives, agents and all other persons or entities acting on behalf of the foregoing. 9. The term "Office ofthe Governor" shall include Defendant Corbett
and all employees, officers, directors, members ofthe Pennsylvania Office ofthe Governor, as well as its attorneys, representatives, agents and all other persons or entities acting on behalf of the foregoing, and all predecessors and successors of the foregoing including all other Governors ofthe Commonwealth of Pennsylvania. 10. The term "Department of Health" shall include Defendant Wolf and
all employees, officers, directors, members ofthe Pennsylvania Department of Health, as well as its attorneys, representatives, agents and all other persons or
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entities acting on behalf of the foregoing, and all predecessors and successors of the foregoing including all other Secretaries ofthe Department of Health. 11. The term "Commonwealth Office" shall include all offices, state
agencies, commissions and councils, boards, and bureaus and authorities ofthe Commonwealth ofPennsylvania, and the employees, officers, directors, members, and any attorneys, representatives, agents and all other persons or entities acting on behalf ofthe foregoing. 12. Produce all documents responsive to the requests that are within your
direct or indirect possession, custody or control. 13. If any documents requested herein were formerly in your possession,
custody or control, but are no longer, please state in writing for each such document:(a)the type of document, e.g., letter or memorandum;(b} the date ofthe document;(c)the author ofthe document;(d)the persons who have seen or had possession ofthe document;(e)a detailed description ofthe subject matter of the document;(~ why the document is no longer in your possession;(g) who last had possession ofthe document; and(h) what person currently has possession ofthe document. 14. All documents produced pursuant to this request shall be produced by
source of file and in the manner in which they are or were maintained in the ordinary course of business. 15. Any document stored electronically in the ordinary course of business
shall be produced electronically in the same file format in which it is stored. 16. If you object to any request, state with specificity the grounds for each
objection and the request or requests to which each objection applies. Any request to which an objection is made should be responded to insofar objectionable. 17. As to any document withheld from production in whole or in due
part
it is not deemed
to a claim of privilege or work product, state:(i)the reason for withholding the document;(ii) the author ofthe document;(iii) each person to whom the original or a copy of the document was sent;(iv) the date ofthe document; and(v)the subject matter ofthe document.
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as
DOCUMENT REQUESTS DOCUMENT REQUEST NO. 1: If you contend that 23 Pa. C.S. 1102 and/or 1704 are constitutional, produce all documents supporting your responses to Interrogatory Nos. 1-4 of Plaintiffs' First Set ofInterrogatories Directed to All Defendants. Response:
DOCUMENT REQUEST NO.2: If you contend that 23 Pa. C.S. 1102 and/or 1704 advance a state interest related to protecting the Commonwealth ofPennsylvania and/or its taxpayers from adverse economic impacts, produce all documents showing or tending to show what economic impacts the Commonwealth and/or its taxpayers would experience, both positive and negative, if same-sex couples were permitted to marry and/or have their marriages recognized in Pennsylvania. Response:
DOCUMENT REQUEST NO.3: If you contend that 23 Pa. C.S. 1102 and/or 1704 advance a state interest related to protecting Pennsylvania businesses, produce all documents showing or tending to show what economic impacts businesses in Pennsylvania would experience, both positive and negative, if same-sex couples were permitted to marry and/or have their marriages recognized in Pennsylvania. Response:
DOCUMENT REQUEST NO.4: If you contend that 23 Pa. C.S. 1102 and/or 1704 advance a state interest related to protecting or promoting the well-being of children or families in the Commonwealth ofPennsylvania, produce all documents showing or tending to show how the prohibition of marriage by same-sex couples and/or the prohibition on the recognition ofthe marriages of same-sex couples in Pennsylvania protects or promotes, or harms or injures, the interests of any children or families in Pennsylvania. Response:
DOCUMENT REQUEST NO.S: If you contend that 23 Pa. C.S. 1102 and/or 1704 advance a state interest related to protecting or promoting the well-being of children or families in the Commonwealth ofPennsylvania, produce all documents showing or tending to show how allowing marriage by same-sex couples and/or the recognition ofthe marriages of same-sex couples in Pennsylvania would harm or injure the interests of any children or families in Pennsylvania. Response:
DOCUMENT REQUEST NO.6: Produce all documents concerning the policies or practices of Your Office and/or the Pennsylvania Employees Benefit Trust Fund(PEBTF)in providing domestic partnership benefits to employees of the Commonwealth with same-sex partners, including without limitation, all studies, reports, memoranda and communications evaluating the financial cost or anticipated cost to the Commonwealth and/or PEBTF of providing such benefits (see, e.g., Jen Colletta, Breaking News: Pa. giants domesticpartner benefits, Philadelphia Gay News, available at http://www.epgn.com/pages/full_story/push?article-Breaking+News-
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+Pa-+grants+domestic-partner+benefits%20&id=2559458), all studies, reports, memoranda and communications regarding why Pennsylvania andlor the PEBTF decided to begin providing such benefits despite a prior policy or practice of not doing so, and all documents received by the Commonwealth from the PEBTF or members ofthe PEBTF Board of Trustees regarding such policies and practices. Response:
DOCUMENT REQUEST NO.7: Produce all documents concerning the policies and practices of Your Office and/or the Pennsylvania Department ofPublic Welfare and/or any Pennsylvania county Children &Youth agencies in placing or allowing county agencies to place children and youth for adoption or in foster care with lesbian or gay individuals or same-sex couples, including without limitation documents sufficient to show all criteria used by the Pennsylvania Department ofPublic Welfare or required of or recommended to any Pennsylvania county Children &Youth agencies to consider when making an adoption or foster-care placement decision; all documents identifying any special criteria to be considered before making placements with
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lesbian and gay individuals and couples that do not apply for placements with heterosexual individuals and couples; and documents sufficient to show whether Pennsylvania requires that the sexual orientation of prospective foster or adoptive parents be ascertained during the application or home study process. Response:
DOCUMENT REQUEST NO.8 Produce all documents containing data or analyses of data regarding reports, prosecutions and/or convictions of hate crimes committed against individuals in Pennsylvania on the basis oftheir sexual orientation on or since January 1, 2003. Response:
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DOCUMENT REQUEST NO.9 Produce all communications since June 26, 2013 within the Office ofthe Governor, or between or among the Office ofthe Governor on the one hand and any other Commonwealth Office or county or local government office in Pennsylvania, including without limitation, any offices ofthe Clerk of Orphans' Court or Register of Wills, on the other hand, relating to the enforcement or application of23 Pa. C.S. 1102 and/or 1704. To be clear, this Request includes without limitation all communications concerning any decisions of, preferences of, or approval granted by, the Office ofthe Governor regarding whether, how or in what manner the Office ofthe Governor or any other Commonwealth Office or county or local government office in Pennsylvania should enforce or apply 23 Pa. C.S. 1102 and/or 1704, such as any statements concerning whether the Secretary of Health or any other representative of any Commonwealth Office should file suit against D. Bruce Hanes, Montgomery County Register of Wills / Clerk of Orphans' Court to enjoin him and his office from issuing marriage licenses to same-sex couples. Response:
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HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER Dated: September 19, 2013 , --~~ , (,~'r Mark A. Aronchick John S. Stapleton Dylan J. Steinberg Rebecca S. Melley One Logan Square, 27th Floor Philadelphia, PA 19103 (215)568-6200 By: James D. Esseks Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212)549-2500 Witold J. Walczak ACLU FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 (412)681-7736 Mary Catherine Roper Molly Tack-Hooper ACLU FOUNDATION OF PENNSYLVANIA P.O. Box 40008 Philadelphia,PA 19106 (215)592-1513 Seth F. Kreimer 3400 Chestnut St. Philadelphia, Pa. 19104 (215)898-7447 Counselfog Plaintiffs
~[~
CERTIFICATE OF SERVICE I hereby certify that, on this 19th day of September, 2013, I caused to be served a true and correct copy ofthe foregoing Plaintiffs' First Set of Requests for Production of Documents Directed to All Defendants upon the following by First Class mail, with courtesy copy to all counsel of record by e-mail: William H. Lamb, Esquire Lamb McErlane PC 24 East Market Street P.O. Box 565 West Chester,PA 19381 CounselfoN Defendants Corbett and Wolf M. Abbegael Giunta, Deputy Attorney General Gregory R. Neuhauser, Chief Deputy Attorney General Office of Attorney General Strawberry Square, 15th Floor Harrisburg,PA 17120 Counselfog Defendant Kane Robert Grimm,Esquire Thomas J. Jezewski, Esquire Swartz Campbell LLC 4750 US Steel Tower 600 Grant Street Pittsburgh,PA 15219 Counselfor Defendant Poknis Nathan D. Fox, Esquire Begley Carlin & Mandio LLP 680 Middletown Blvd. Langhorne,PA 19047 Counselfog Defendant Pet~ille
,' ~~ '~. ~cu- _~ ` ~~ y~ ~' ~~K_.~_
Jo ' S. Stapleton

1:13-cv-01861 #38

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1:13-cv-01861 #38

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Case 1:13-cv-01861-JEJ Document 38 Filed 10/04/13 Page 1 of 29

JOINT CASE MANAGEMENT PLAN

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which they may be entitled.

The facts the parties dispute are as follows: Plaintiffs Position:

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The facts that the parties agree upon are as follows:

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The legal issues the parties agree upon are as follows:

Identify any additional parties that: Plaintiff(s) intend to join:

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Kylee Higgins Colleen Strunk Lisamarie Lewendowski Mary Jo Poknis

3.0 Early Motions

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Defendants responses to these interrogatories are due on October 22, 2013.

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4.5.3 document production requests to be served by:

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Discovery of Electronically Stored Information

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at a time stipulated to by the parties or upon leave of court. 6.7

Defendants Position: July 30, 2014

January 30, 2014

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6.10 Suggested Date for Trial: Plaintiffs Position:

Defendant(s) Position: February 3, 2015

February 17, 2014 7.0

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Dated: Oct. 4, 2013

ACLU FOUNDATION OF PENNSYLVANIA

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Dated: Oct. 4, 2013

Dated: Oct. 4, 2013

OFFICE OF ATTORNEY GENERAL

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Civil Action No. 13-1861-JEJ

PLAINTIFFS' FIRST SET OF INTERROGATORIES DIRECTED TO ALL DEFENDANTS

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Respond to each Interrogatory in full. If you cannot do so, respond to

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