3:09-cv-02292 #224

Case3:09-cv-02292-VRW Document224 Filed10/13/09 Page1 of 4
1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
5 Theodore J. Boutrous, Jr., SBN 132009

tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
9 Telephone: (213) 229-7804, Facsimile: (213) 229-7520
10 BOIES, SCHILLER & FLEXNER LLP

David Boies, pro hac vice
11 dboies@bsfllp.com
Theodore H. Uno, SBN 248603
12 333 Main Street, Armonk, New York 10504
Telephone: (914) 749-8200, Facsimile: (914) 749-8300
13
Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER,
14 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA
17 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW
PAUL T. KATAMI, and JEFFREY J.
18 ZARRILLO,
Plaintiffs,
19 DECLARATION OF CHRISTOPHER D.
v. DUSSEAULT IN SUPPORT OF
20 PLAINTIFFS’ AND PLAINTIFF-
ARNOLD SCHWARZENEGGER, in his official INTERVENOR’S JOINT OPPOSITION TO
21 capacity as Governor of California; EDMUND DEFENDANT-INTERVENORS’ MOTION
G. BROWN, JR., in his official capacity as FOR A STAY PENDING APPEAL AND/OR
22 Attorney General of California; MARK B. PETITION FOR WRIT OF MANDAMUS
HORTON, in his official capacity as Director of
23 the California Department of Public Health and Date: January 7, 2010
State Registrar of Vital Statistics; LINETTE Time: 10:00 a.m.
24 SCOTT, in her official capacity as Deputy Judge: Chief Judge Walker
Director of Health Information & Strategic Location: Courtroom 6, 17th Floor
25 Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
26 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
27 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
28 Defendants.
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW DECLARATION OF CHRISTOPHER D. DUSSEAULT

1 I, Christopher D. Dusseault, declare as follows:
2 1. I am a partner at the law firm of Gibson, Dunn & Crutcher LLP, and I am one of the
3 attorneys of record for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J.
4 Zarrillo (“Plaintiffs”) in this action. I make this declaration in support of Plaintiffs’ and Plaintiff-
5 Intervenor’s Joint Opposition to Defendant-Intervenors’ Motion for a Stay Pending Appeal and/or
6 Petition for Writ of Mandamus. I have personal knowledge of the facts set forth herein, and if called
7 as a witness, I could and would competently testify hereto.
8 2. On October 8, 2009, counsel for Defendant-Intervenors, Jesse Panuccio, requested by
9 e-mail that Plaintiffs stipulate to an expedited briefing schedule for this Motion. Mr. Panuccio’s
10 original proposal was that Plaintiffs respond to the Motion by Tuesday, October 13, just two business
11 days after filing of the Motion, and it made no mention of any reply brief. On that same day, I
12 responded to Mr. Panuccio’s e-mail and stated that, while Plaintiffs were amenable to such an
13 expedited schedule, they wanted to be certain that the Court could, if desired, address the issues
14 raised by the Motion in the October 14, 2009 hearing on Defendant-Intervenors’ Motion for
15 Summary Judgment. Accordingly, I sought to confirm that the briefing on Plaintiffs’ Motion be
16 limited to the Motion and Plaintiffs’ opposition.
17 3. Defendant-Intervenors sought to reserve the right to file a reply after October 13, 2009
18 or, alternatively, to shorten even further Plaintiffs’ already shortened time to reply to Defendant-
19 Intervenors’ Motion. While the parties were not able to agree on a specific briefing schedule, both
20 parties agreed that the matter should be resolved as promptly as possible. A true and correct copy of
21 the October 8, 2009 e-mail exchange between Mr. Panuccio and I reflecting these negotiations is
22 attached hereto as Exhibit A.
23 4. Plaintiffs have submitted their Opposition to Plaintiffs’ Motion as early as practicable.
24 5. Defendant-Intervenors have not yet offered to Plaintiffs any draft language for any
25 protective order that could be applied to documents produced in this case.
26 6. Plaintiffs’ efforts at obtaining information through third party discovery of
27 information related to the strategy underlying the Prop. 8 campaign have been blocked as a result of
28 Defendant-Intervenors’ appeal because third parties such as Schubert Flint Public Affairs have
Gibson, Dunn &

Crutcher LLP 1
1 incorporated by reference Defendant-Intervenors’ First Amendment privilege defense (and
2 Defendant-Intervenors’ interlocutory appeal of the order rejecting that defense as presented). A true
3 and correct copy of Schubert Flint’s Responses and Objections to Plaintiffs’ Subpoena to Produce
4 Documents is attached as Exhibit B.
5 7. On September 1, 2009, Defendant-Intervenors served a subpoena seeking
6 communications substantially similar to those they seek to protect here from Fred Karger, founder of
7 Californians Against Hate, as part of their discovery in ProtectMarriage.com v. Bowen (E.D. Cal.
8 Case No. 2:09-cv-00058-MCE-DAD). A true and correct copy of this subpoena is attached hereto as
9 Exhibit C.
10 8. Defendant-Intervenors have not disclosed the identities of three members of the ad hoc
11 executive committee who provided the executive direction to the campaign or whether such
12 individuals have evidence relevant to this case.
13 I declare, under penalty of perjury under the laws of the United States, that these facts
14 are true and correct and that this Declaration is executed this 13th day of October 2009 at
15 Los Angeles, California.
16
17 /s/ Christopher D. Dusseault

Christopher D. Dusseault
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Gibson, Dunn &

Crutcher LLP 2
1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45
2 Pursuant to General Order No. 45 of the Northern District of California, I attest that concurrence
3 in the filing of the document has been obtained from each of the other signatories to this document.
4
6 By: /s/ Theodore B. Olson

Theodore B. Olson
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Gibson, Dunn &

Crutcher LLP 3
Case3:09-cv-02292-JW Document224-1 Filed10/13/09 Page1 of 6
Exhibit A
Page 1 of 5
Justice Lazarus, Rebecca
From: Dusseault, Christopher D.

Sent: Thursday, October 08, 2009 2:37 PM
To: 'jpanuccio@cooperkirk.com'; Olson, Theodore B.; McGill, Matthew D.; Tayrani, Amir C.; Boutrous
Jr., Theodore J.; Kapur, Theane Evangelis; Malzahn, Scott; Dettmer, Ethan D.; Piepmeier, Sarah
E.; Monagas, Enrique A.; Justice Lazarus, Rebecca; Janky, Mary; 'jgoldman@bsfllp.com';
'tuno@bsfllp.com'; 'brichardson@bsfllp.com'; 'rbettan@bsfllp.com'; 'jischiller@bsfllp.com';
'Lindsey.stern@acgov.org'; 'brian.washington@acgov.org'; 'Judith.martinez@acgov.org';
'claude.kolm@acgov.org'; 'jwhitehurst@counsel.lacounty.gov'; 'ccooper@cooperkirk.com';
'dthompson@cooperkirk.com'; 'hnielson@cooperkirk.com'; 'ppatterson@cooperkirk.com';
'jcampbell@telladf.org'; 'BRaum@telladf.org'; 'KCM@mgslaw.com'; 'gosling@mgslaw.com';
'aknight@mgslaw.com'; 'stroud@mgslaw.com'
Subject: Re: Perry v. Schwarzenegger: stipulation on briefing schedule/hearing for stay motion
Jesse,
Please do what you feel you need to do, but understand that absent an agreement the timing of our response will
be dictated by the hearing date and the rules of the Northern District. Unless and until the Court stays its Order on
the protective order motion, we expect Defendant-Intervenors to abide by it.
I continue to think that the proposal I outlined below is the most reasonable solution and hope that you will
reconsider your position.
Chris
From: Jesse Panuccio

To: Dusseault, Christopher D.; Olson, Theodore B.; McGill, Matthew D.; Tayrani, Amir C.; Boutrous Jr., Theodore
J.; Kapur, Theane Evangelis; Malzahn, Scott; Dettmer, Ethan D.; Piepmeier, Sarah E.; Monagas, Enrique A.;
Justice Lazarus, Rebecca; Janky, Mary; jgoldman@bsfllp.com ; tuno@bsfllp.com ; brichardson@bsfllp.com ;
rbettan@bsfllp.com ; jischiller@bsfllp.com ; Lindsey.stern@acgov.org ; brian.washington@acgov.org ;
Judith.martinez@acgov.org ; claude.kolm@acgov.org ; jwhitehurst@counsel.lacounty.gov ; Chuck Cooper ; David
Thompson ; Howard Nielson ; Pete Patterson ; jcampbell@telladf.org ; BRaum@telladf.org ; kcm@mgslaw.com ;
gosling@mgslaw.com ; aknight@mgslaw.com ; stroud@mgslaw.com ; lbailey@mgslaw.com ;
therese.stewart@sfgov.org ; erin.bernstein@sfgov.org ; vince.chhabria@sfgov.org ; danny.chou@sfgov.org ;
ronald.flynn@sfgov.org ; mollie.lee@sfgov.org ; christine.van.aken@sfgov.org ; catheryn.daly@sfgov.org ;
Gordon.Burns@doj.ca.gov ; Tamar.Pachter@doj.ca.gov ; Nicole Moss
Sent: Thu Oct 08 14:25:34 2009
Subject: RE: Perry v. Schwarzenegger: stipulation on briefing schedule/hearing for stay motion
Chris,
We cannot blindly waive our right to a reply. We will, therefore, notice the motion for a hearing in the normal
course. We look forward, however, to a prompt response from your clients and will, in turn, promptly either file a
reply or waive our right to do so.
Regards,
Jesse
From: Dusseault, Christopher D. [mailto:CDusseault@gibsondunn.com]

To: Jesse Panuccio; Olson, Theodore B.; McGill, Matthew D.; Tayrani, Amir C.; Boutrous Jr., Theodore J.; Kapur,
10/12/2009
Page 2 of 5
Theane Evangelis; Malzahn, Scott; Dettmer, Ethan D.; Piepmeier, Sarah E.; Monagas, Enrique A.; Justice Lazarus,
Rebecca; Janky, Mary; jgoldman@bsfllp.com; tuno@bsfllp.com; brichardson@bsfllp.com; rbettan@bsfllp.com;
jischiller@bsfllp.com; Lindsey.stern@acgov.org; brian.washington@acgov.org; Judith.martinez@acgov.org;
claude.kolm@acgov.org; jwhitehurst@counsel.lacounty.gov; Chuck Cooper; David Thompson; Howard Nielson;
Pete Patterson; jcampbell@telladf.org; BRaum@telladf.org; kcm@mgslaw.com; gosling@mgslaw.com;
aknight@mgslaw.com; stroud@mgslaw.com; lbailey@mgslaw.com; therese.stewart@sfgov.org;
erin.bernstein@sfgov.org; vince.chhabria@sfgov.org; danny.chou@sfgov.org; ronald.flynn@sfgov.org;
mollie.lee@sfgov.org; christine.van.aken@sfgov.org; catheryn.daly@sfgov.org; Gordon.Burns@doj.ca.gov;
Tamar.Pachter@doj.ca.gov; Nicole Moss
Jesse,
While I appreciate your effort to look for a solution, that also does not work for us. Defendant-
Intervenors took a week after Chief Judge Walker's ruling to prepare their motion to stay, which
we first heard about this morning. Your latest proposal would give us one business day (or
four calendar days including the weekend and a holiday) to prepare our response.
Given your representation that Defendant-Intervenors do not anticipate filing a reply, we think
the better course is to give Plaintiffs a full two business days for our opposition and agree that
the issue will be resolved on each side's primary brief.
Best,
Chris
From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]

Justice Lazarus, Rebecca; Janky, Mary; jgoldman@bsfllp.com; tuno@bsfllp.com; brichardson@bsfllp.com;
rbettan@bsfllp.com; jischiller@bsfllp.com; Lindsey.stern@acgov.org; brian.washington@acgov.org;
Judith.martinez@acgov.org; claude.kolm@acgov.org; jwhitehurst@counsel.lacounty.gov; Chuck Cooper; David
Thompson; Howard Nielson; Pete Patterson; jcampbell@telladf.org; BRaum@telladf.org; kcm@mgslaw.com;
gosling@mgslaw.com; aknight@mgslaw.com; stroud@mgslaw.com; lbailey@mgslaw.com;
therese.stewart@sfgov.org; erin.bernstein@sfgov.org; vince.chhabria@sfgov.org; danny.chou@sfgov.org;
ronald.flynn@sfgov.org; mollie.lee@sfgov.org; christine.van.aken@sfgov.org; catheryn.daly@sfgov.org;
Gordon.Burns@doj.ca.gov; Tamar.Pachter@doj.ca.gov; Nicole Moss
Chris,
Would you be amenable to having a response in by 5pm EST on Monday and a reply, if any, by 5pm EST on
Tuesday? If it helps your consideration of the issue, the opening paper is not very long--less than seven pages.
Regards,
Jesse

10/12/2009
Page 3 of 5
Jesse,
This does not work for Plaintiffs. We want to have this matter fully briefed by Tuesday so that
Chief Judge Walker can address and decide the issue, should he wish to so do, when we are
before him on Wednesday. Therefore, we will agree to your proposed schedule if you will
agree that there will be no reply and the matter is fully briefed upon submission of any
response on Tuesday. Otherwise, we cannot agree to your proposal.
Best,
Chris

Sent: Thursday, October 08, 2009 11:14 AM
Chris,
Thank you for your prompt response. While we do not anticipate submitting a reply, we do reserve the right to do
so. We are willing to agree that a reply would be filed within 48 hours of receiving the last-filed response brief.
Regards,
Jesse

10/12/2009
Page 4 of 5

Jesse,
Plaintiffs are fine with this proposed stipulation provided we are on the same page that there
will be no reply, and thus the issues will be fully briefed and submitted upon filing of our
response. If this is not your intention please let me know.
Chris

Sent: Thursday, October 08, 2009 10:02 AM
To: Olson, Theodore B.; McGill, Matthew D.; Tayrani, Amir C.; Boutrous Jr., Theodore J.; Dusseault, Christopher
D.; Kapur, Theane Evangelis; Malzahn, Scott; Dettmer, Ethan D.; Piepmeier, Sarah E.; Monagas, Enrique A.;
Subject: Perry v. Schwarzenegger: stipulation on briefing schedule/hearing for stay motion
Dear Counsel,

Defendant-Intervenors are today filing a notice of appeal of the Court's denial of their motion for a protective order
(Doc # 214, dated Oct. 1, 2009). In conjunction with that appeal, Defendant-Intervenors plan to file today in the
district court a motion for a stay of discovery permitted by the order. Under the Local Rules, motions such as
these must be noticed for a hearing -- and the next available date on the Court's calendar is not until January.
Given that the Court has already benefitted from extensive briefing and oral argument on the underlying merits,
and given that all parties have indicated a desire to move this case to trial as quickly as possible, we would like to
propose a stipulation that waives a hearing on this issue and establishes an expedited briefing schedule. We
would propose that a response brief, if desired, be due five calendar days after the filing of our motion--that is,
next Tuesday, October 13. As we plan to file today, can you please let us know as soon as possible whether your
clients would be amendable to such a stipulation?

Regards,

Jesse
----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com
==============================================================================
This message may contain confidential and privileged information. If it has
10/12/2009
Page 5 of 5
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10/12/2009
Case3:09-cv-02292-VRW Document224-2 Filed10/13/09 Page1 of 16
Exhibit B
1 ADVOCATES FOR FAITH AND FREEDOM

Robert H. Tyler (CA Bar No. 179572)
2 rtyler@faith-freedom.com
Jennifer L. Monk (CA Bar No. 245512)
3 jmonk@faith-freedom.com
24910 Las Brisas Road, Suite 110
4 Murrieta, California 92562
Telephone:951-304-7583; Facsimile: 951-600-4996
5
6 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA
7
KRISTIN M. PERRY, SANDRA B. STIER, PAUL
8 T. KATAMI, and JEFFREY J. ZARRILLO,
CASE NO. 09-CV-2292 VRW (Northern
9 District of California)
Plaintiffs,
10 SCHUBERT FLINT’S RESPONSES
v. AND OBJECTIONS TO PLAINTIFFS’
11 SUBPOENA TO PRODUCE
ARNOLD SCHWARZENEGGER, in his official DOCUMENTS, INFORMATION, OR
12 capacity as Governor of California; EDMUND G. OBJECTS OR TO PERMIT
BROWN, JR., in his official capacity as Attorney INSPECTION OF PREMISES
13
General of California; MARK B. HORTON, in his
14 official capacity as Director of the California
Department of Public Health and State Registrar of
15 Vital Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health Information
16 & Strategic Planning for the California Department
of Public Health; PATRICK O’CONNELL, in his
17
official capacity as Clerk-Recorder for the County
18 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
19 the County of Los Angeles,
20 Defendants,
21 and
22 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
23 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
24 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
25 RENEWAL,
26 Defendant-Intervenors.
27
28
SCHUBERT FLINT’S RESPONSES AND OBJECTIONS TO PLAINTIFFS’ SUBPOENA TO PRODUCE DOCUMENTS,
INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES
CASE NO. 09-CV-2292 VRW
1 Pursuant to Rules 26 and 45 of the Federal Rules of Civil Procedure, Schubert Flint Public
2 Affairs, Inc., (“Schubert Flint”) hereby objects to the Subpoena issued by Plaintiffs in the above
3
captioned matter dated September 17, 2009 and served on Schubert Flint on September 24, 2009 as
4
follows:
5
GENERAL OBJECTIONS
6
7 1. Schubert Flint is still in the process of completing its factual investigation in connection
8 with the Subpoena served on it less than two weeks ago. Accordingly, these objections and
9 responses are provided without prejudice to Schubert Flint’s right to produce subsequently
10 discovered documents and materials, or to modify, change or amend these responses and
11
objections. The information provided in these objections is nevertheless true and correct to the
12
best of Schubert Flint’s knowledge at this time.
13
2. Schubert Flint specifically incorporates by reference the objections and arguments set
14
15 forth by Defendant-Intervenors in the following: 1) Defendant-Intervenors’ responses to Plaintiffs’
16 Discovery Requests; 2) Defendant-Intervenors’ Motion for Protective Order (Doc # 187); 3)
17 Defendant-Intervenors’ Reply in Support of Motion for Protective Order (Doc # 197); and 4) in
18
any stay and/or appeals papers Defendant-Intervenors may file regarding Plaintiffs’ attempt to
19
discover internal campaign strategy documents and/or nonpublic and/or anonymous
20
communications related to Proposition 8. These objections are based, inter alia, on relevance,
21
burden, and First Amendment privilege grounds.
22
23 3. More specifically, Schubert Flint shares in Defendant-Intervenors’ objection that
24 Plaintiffs’ requests as set forth in the Subpoena violate protected First Amendment rights and
25 therefore incorporates all of Defendant-Intervenors’ First Amendment arguments and objects on

26
those grounds to producing anything other than the public documents that have already been
27
provided to our client, Protect Marriage.com, for production to Plaintiffs. The incorporated
28
1
SCHUBERT FLINT’S OBJECTIONS AND RESPONSES TO PLAINTIFFS’ SUBPOENA
1 objections referenced above also include but are not limited to the objections made by Defendant-
2 Intervenors to producing drafts and other nonpublic pre-decisional documents or communications
3
associated with preparing final documents or communications regarding Proposition 8 that were
4
actually disseminated to the electorate and objections to producing documents and information
5
postdating the passage of Proposition 8 in November 2008.
6
7 4. Schubert Flint objects to these Requests as vague, ambiguous, and/or unduly
8 burdensome to the extent that the terms “public” and “third-party” are not defined and/or limited in
9 any way, and taken at face value would encompass all communications Schubert Flint may have
10 had with any “third party”—even a single individual, whether or not a California voter—bearing
11
any relationship to Proposition 8 whatsoever. Such documents include, but are not limited to,
12
communications with individual donors, volunteers, or voters; communications with political
13
strategists and other agents or contractors of Defendant-Intervenors; and communications with
14
15 friends, colleagues, and casual acquaintances. Moreover, Plaintiffs seek these communications
16 regardless of whether they relate to the public understanding of or motivation for enacting
17 Proposition 8. This presents not only First Amendment concerns, but also creates an undue burden
18 on Schubert Flint in attempting to gather, review, and produce all such communications.
19
5. Schubert Flint objects to the Subpoena on the grounds that it seeks production of
20
documents which are not legally relevant to any claims or defenses in the litigation and are not
21
reasonably calculated to lead to the discovery of admissible evidence as required by Fed. R. Civ. P.
22
23 26(b)(1).
24 6. Schubert Flint objects to the Subpoena on the grounds that it imposes undue burden and
25 expense in violation of Fed. R. Civ. P. 45(c) including but not limited to requiring Schubert Flint to
26
produce electronically-stored information (“ESI”) that is not reasonably accessible and/or the
27
production of which would entail substantial cost. To the extent Schubert Flint is required to
28
2
1 produce documents that are not reasonably accessible and/or is required to undertake unduly
2 burdensome measures in response to the Subpoena, the cost of any production (including but not
3
limited to any electronic media restoration, processing, scanning, exporting, storage, etc.) would be
4
borne by Plaintiffs.
5
7. Schubert Flint objects to the Subpoena to the extent that it seeks information and
6
7 documents that: are already in Plaintiffs’ possession; are duplicative of documents already
8 produced by Defendant-Intervenors; or are as equally available to Plaintiffs from other sources that
9 are more convenient, less burdensome, and/or less expensive. Schubert Flint further objects to the
10 Subpoena to the extent it purports to place an obligation on Schubert Flint to produce documents
11
and information from entities and/or individuals who are not within Schubert Flint’s custody and
12
control in violation of Fed. R. Civ. P. 26(b)(2)(C)(ii).
13
8. Schubert Flint objects to the Subpoena to the extent it requires disclosing confidential
14
15 research and proprietary information.
16 9. Schubert Flint objects to the Subpoena to the extent it calls for the production of
17 documents or information protected from disclosure by any claim of privilege, including but not
18 limited to the attorney-client privilege, the work-product doctrine, and the right to privacy. While
19
Schubert Flint does not intend to produce any such privileged or protected documents or
20
information, should any inadvertent disclosure occur, it shall not be deemed a waiver of any
21
privilege.
22
23 10. Schubert Flint objects to the Subpoena, and to the definitions and instructions included
24 therewith, to the extent that it purports to impose upon Schubert Flint obligations broader than, or
25 inconsistent with, the Federal Rules of Civil Procedure, the Local Rules and Orders of this Court,
26
or the Local Rules and Order of the District Court for the Northern District of California where this
27
action is pending.
28
3
1 11. Schubert Flint objects to the Subpoena, and to the definitions and instructions included
2 therewith, to the extent that it calls for the production of documents or information beyond what is
3
authorized by the order of October 1, 2009 (Doc # 214) issued by the District Court for the
4
Northern District of California in this case.
5
Subject to and without waiving any of the foregoing General Objections, which are hereby
6
7 incorporated into each response given below, Schubert Flint is answering these Requests in
8 substance to the extent practicable and reasonable under the present circumstances, as stated
9 below. Schubert Flint hereby objects and responds to the individual Requests as follows:
10
SPECIFIC OBJECTIONS AND RESPONSES
11
REQUEST FOR PRODUCTION NO. 1:
12
13 All documents, including without limitation literature, pamphlets, flyers, direct mail,
advertisements, emails, text messages, press releases, or other materials that you distributed to
14
voters, donors, potential donors, or members of the media regarding Proposition 8.
15
16 RESPONSE:
17 Shubert Flint reiterates its General Objections as if specifically set forth below in response
18
to this Request. Schubert Flint objects to this Request as calling for irrelevant documents and
19
documents privileged from disclosure under the First Amendment. Schubert Flint further
20
specifically objects to this Request to the extent it calls for the production of documents and
21
22 information to “donors” or “potential donors.” Schubert Flint further specifically objects to this
23 Request to the extent it calls for production of documents and information that are not relevant
24 and/or protected by the First Amendment—including documents not publically distributed. As

25 noted above, Schubert Flint incorporates by reference the objections and explanations set forth by
26
Defendant-Intervenors in the briefing on their Motion for a Protective Order and any stay and/or
27
appeal papers they may file.
28
4
1 Subject to and without waiving any objection, and without conceding the relevancy of any
2 materials being produced in response to this Request, Schubert Flint has already provided to
3
Defendant-Intervenors for production to Plaintiffs final copies of public communications
4
responsive to this Request that were distributed to and or available to the public.
5
6 REQUEST FOR PRODUCTION NO. 2:

7
All versions of any internet advertisement relating to Proposition 8 that you had any involvement
8
in producing, creating or distributing.
9
10 RESPONSE:
11
Schubert Flint reiterates its General Objections as if specifically set forth below in response
12
13
documents privileged from disclosure under the First Amendment. Schubert Flint objects to
14
15 producing drafts of final public communications, which would include, e.g., nonpublic versions of
16 Internet advertisements relating to Proposition 8 that were never actually posted on the Internet.
17 Schubert Flint objects to this Request to the extent it calls for production of documents not
18 available to the public (e.g., Internet communications of limited or invite-only distribution).
19
Schubert Flint also specifically objects to this Request to the extent it calls for the production of
20
material from the Internet that is not uniquely within Schubert Flint’s custody or control in
21
violation of Fed. R. Civ. P. 26(b)(2)(C)(i). To the extent there were or are Internet advertisements
22
23 related to Proposition 8 posted on the Internet that information is as equally available to Plaintiffs
24 as it is to Schubert Flint and thus is not the proper subject of discovery to Schubert Flint.
25 Subject to and without waiving these objections, and without conceding the relevancy of
26
any materials being produced in response to this Request, Schubert Flint has already provided to
27
28
5
1 Defendant-Intervenors for production to Plaintiffs final versions of internet advertisements posted

2 on the Internet that Schubert Flint had involvement in producing, creating, or distributing.
3
5 All versions of any television advertisement relating to Proposition 8 that you had any
6 involvement in producing creating, or distributing.
7
8 RESPONSE:
9 Schubert Flint reiterates its General Objections as if specifically set forth below in response
10 to this Request. Schubert Flint objects to this Request as calling for irrelevant documents and
11
12
producing drafts of final public communications, which would include nonpublic versions of
13
television advertisements relating to Proposition 8 that were never actually aired. Schubert Flint
14
15 objects to this Request to the extent it calls for production of documents not available to the public.
16 Schubert Flint also specifically objects to this Request to the extent it calls for the production of
17 material not uniquely within Schubert Flint’s custody or control in violation of Fed. R. Civ. P.
18 26(b)(2)(C)(i).
19
Subject to and without waiving these objections, and without conceding the relevancy of
20
21
Defendant-Intervenors for production to Plaintiffs final versions of any television advertisements
22
23 that Schubert Flint had any involvement in creating, producing, or distributing and that were
24 actually aired on television.
25
26
27 All versions of any radio advertisement relating to Proposition 8 that you had any involvement in
28 producing, creating, or distributing.

6
1
RESPONSE:
2
3
5 documents privileged from disclosure under the First Amendment. Schubert Flint objects to
6 producing drafts of final public communications, which would include nonpublic versions of radio
7
advertisements relating to Proposition 8 that were never actually aired. Schubert Flint objects to
8
this Request to the extent it calls for production of documents not available to the public. Schubert
9
Flint also specifically objects to this Request to the extent it calls for the production of material not
10
11 uniquely within Schubert Flint’s custody or control in violation of Fed. R. Civ. P. 26(b)(2)(C)(i).
12 Subject to and without waiving these objections, and without conceding the relevancy of
13 any materials being produced in response to this Request, Schubert Flint has already provided to
14 Defendant-Intervenors for production to Plaintiffs final versions of radio advertisements that
15
Schubert Flint had involvement in creating, producing, or distributing that were actually aired on
16
the radio.
17
18
19
All plans, schematics, and versions of the websites relating to Proposition 8 that you hosted, paid
20
for, designed, or sponsored.
21
22 RESPONSE:
24
25
26
producing drafts of final public communications, which would include nonpublic versions of
27
28
7
1 websites relating to Proposition 8 that were never actually accessible by the public. Schubert Flint
2 objects to this Request to the extent it calls for production of documents not available to the public.
3
4
5
Defendant-Intervenors for production to Plaintiffs final versions of Internet pages from websites
6
7 related to Proposition 8 that Schubert Flint hosted, paid or, designed, or sponsored.
8
REQUEST FOR PRODUCTION NO.6:
9
All documents you prepared for use in communicating with voters, donors, potential donors, or
10
members of the media, including but not limited to speeches, scripts, talking points, articles, notes,
11
and automated telemarketing phone calls.
12
13 RESPONSE:
14
15
16
17 documents privileged from disclosure under the First Amendment. Schubert Flint objects to this
18 Request as calling for confidential and proprietary information. As written, this Request on its
19 face is not even limited to the subject matter of this litigation, Proposition 8. Schubert Flint also
20
objects to this Request to the extent it calls for drafts of final public communications, which would
21
include nonpublic versions of documents relating to Proposition 8 that were never actually
22
distributed or available to the public.
23
24
26 Defendant-Intervenors for production to Plaintiffs final versions of documents responsive to this

27 Request that are outside the scope of the stated objections.
28
8
1 REQUEST FOR PRODUCTION NO.7:

2 All documents constituting postings related to Proposition 8 that were made by you on social
networking websites, including but not limited to Facebook, MySpace, and Twitter.
3
4
RESPONSE:
5
9
Request to the extent it calls for production of documents not available to the public. Schubert
10
Flint further specifically objects to this Request to the extent it purports to reach the nonpublic
11
communications and postings of individual employees of Schubert Flint on their personal (as
12
13 opposed to postings publicly accessible by any member of the electorate at large) social-
14 networking sites. While Schubert Flint does not, at this time, believe that any such postings exist,
15 were such postings to exist Schubert Flint would object to producing them, as this would violate
16 the First Amendment rights of Schubert Flint and its employees and call for information that is
17
entirely irrelevant to any issue in this matter. Thus, to the extent any such postings do exist,
18
Schubert Flint objects to their production.
19
20
22 Defendant-Intervenors for production to Plaintiffs postings on public social networking sites
23 maintained for the Yes on 8 campaign.

24
25 REQUEST FOR PRODUCTION NO.8:

26 All versions of any documents that reflect communications relating to Proposition 8 between
27 you and any third party, including, without limitation, emails between you and Protect Marriage,
28
9
1 documents you provided to Protect Marriage, and communications between you and members of
2 the media.
3
RESPONSE:
4
5
6
8 Request to the extent it calls for production of documents not available to the public. Schubert
9 Flint objects to producing drafts of final public communications, which would include nonpublic
10 versions of communications relating to Proposition 8 that were never available to the public.
11
Schubert Flint objects to the phrase “any third party” as vague, ambiguous, not defined, and not
12
reasonably narrowed. Schubert Flint further notes that when a similarly broad request was made to
13
Defendant-Intervenors, the Court in which this action is pending found the request to be too broad
14
15 and Defendant-Intervenors’ undue burden objections well-taken. Plaintiffs were directed “to
16 revise request no 8 to target those communications most likely to be relevant to the factual issues
17 identified by plaintiffs.” Doc. # 214 at 16. No such attempt to redraft the Request being
18 propounded on Schubert Flint has been made. On its face, this Request appears to be seeking any
19
communication related to Proposition 8 in any way, whether or not it is related to a public
20
communication or was actually available to the public. This Request appears to include, for
21
example: any and all communications Schubert Flint may have had with other vendors,
22
23 consultants, donors, members, friends, associates, or other correspondents. Such a broad request is
24 objectionable on First Amendment grounds and because of the undue burden and expense it would
25 impose on Schubert Flint to gather, review, log and/or produce all responsive materials, the
26
overwhelming majority of which are irrelevant to any issue in dispute in this case in violation of
27
Fed. R. Civ. P. 26(b)(2)(C)(iii) and 45(c).
28
10
1 Based on the objections asserted above, Schubert Flint has no additional documents to
2 produce at this time.
3
4
Documents sufficient to show the title of everyone employed by you from January 1, 2006 to
5
December 31, 2008, including but not limited to organizational charts.
6
7 RESPONSE:
9
to this Request. Schubert Flint objects to this Request to the extent it seeks information pre-dating
10
its involvement in the Proposition 8 campaign. Schubert Flint further objects to this Request as
11
overly broad and as calling for irrelevant information. Not everyone employed by Schubert Flint
12
13 worked on the Proposition 8 campaign nor did everyone who did work on the campaign have
14 substantive involvement or decisionmaking authority related to the campaign; the identity of such
15 employees is therefore irrelevant.

16 Subject to and without waiving these objections, Schubert Flint is in the process of
17
determining whether there are any reasonably accessible, non-privileged or non-confidential
18
documents that already exist that can be produced in response to this Request.
19
20
22 All documents reflecting public media coverage of Proposition 8 referring or related to your
23 organization.
24
RESPONSE:
25
26
to this Request. Schubert Flint further specifically objects to this Request to the extent it purports
27
to call for the production of publicly available information that is not uniquely within Schubert
28
11
1 Flint’s custody and control and is as readily available to Plaintiffs as it is to Schubert Flint. See
2 Fed. R. Civ. P. 26(b)(2)(C)(i). To the extent Plaintiffs wish to review the public media coverage of
3
Proposition 8, they can access such materials just as easily as Schubert Flint. Schubert Flint
4
further objects to this Request to the extent it calls for collections, compilations, summaries, or
5
analysis of public media coverage that may have been created by Schubert Flint for personal,
6
7 political, strategic, or other reasons.
8 Subject to and without waiving these objections, and without conceding the legal relevancy
9 of such materials, Schubert Flint has already provided to Defendant-Intervenors for production to
10 Plaintiffs documents created by Schubert Flint and produced to the media for dissemination to the
11
public.
12

14 All documents constituting, reflecting, or referring to coordination or cooperation among
15 organizations and/or individuals supporting the passage of Proposition 8.
16
RESPONSE:
17
18
19 to this Request. In particular, Schubert Flint objects to this Request to the extent it calls for
20 irrelevant documents and documents protected from disclosure under the First Amendment.
21 Schubert Flint further objects to this Request as overly broad and unduly burdensome.
22
24 All minutes or other memorializations for meetings in which you participated concerning
25 Proposition 8.
26
RESPONSE:
27
12
1 to this Request. In particular, Schubert Flint objects to this Request to the extent it calls for
2 irrelevant documents and documents protected from disclosure under the First Amendment.
3
Schubert Flint further objects to this Request as overly broad and unduly burdensome. The term
4
“meetings” is undefined. As the campaign manager for Protect Marriage.com, staff for Schubert
5
Flint engaged in thousands of discussions, conferences, gatherings, etc., which may or may not
6
7 constitute a “meeting” covered by this Request. Thus, this Request read literally could require the
8 production of scores of notes, emails, etc. bearing even the remotest relationship to Proposition 8
9 whether or not actually related to Plaintiffs’ purported interests in seeking such discovery.
10 Subject to these objections, Schubert Flint has no documents to produce at this time.
11
13 Documents sufficient to show all expenditures by you and payments to you in connection with
14 Proposition 8.
15
16
RESPONSE:
17
Schubert Flint reiterates its General Objections as if specifically set forth below in response to this
18
19 Request. In particular, Schubert Flint objects to this Request to the extent it calls for irrelevant
20 documents and documents protected from disclosure under the First Amendment. Schubert Flint
21 further objects to this Request as impermissibly seeking private and/or proprietary information. The
22
amount of expenditures made or payments received by Schubert Flint in connection with Proposition
23
8 are irrelevant to any claim or defense in this action and is not information designed to lead to the
24
discovery of admissible evidence.
25
Subject to these objections, Schubert Flint has no additional documents to produce at this
26
27 time.
28
13
1 October 7, 2009
2 /s/ Robert H. Tyler________________________
3 ADVOCATES FOR FAITH AND FREEDOMRobert H. Tyler
(CA Bar No. 179572)
4 rtyler@faith-freedom.com
Jennifer L. Monk (CA Bar No. 245512)
5 jmonk@faith-freedom.com
24910 Las Brisas Road, Suite 110
6 Murrieta, California 92562
Telephone:951-3-4-7583; Facsimile: 951-600-4996
7
8 Attorneys for Schubert Flint Public Affairs, Inc.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
Exhibit C

3:09-cv-02292 #224

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3:09-cv-02292 #224

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Case3:09-cv-02292-VRW Document224 Filed10/13/09 Page1 of 4

1 GIBSON, DUNN & CRUTCHER LLP

5 Theodore J. Boutrous, Jr., SBN 132009

10 BOIES, SCHILLER & FLEXNER LLP

15 UNITED STATES DISTRICT COURT

Gibson, Dunn &

09-CV-2292 VRW DECLARATION OF CHRISTOPHER D. DUSSEAULT

1 I, Christopher D. Dusseault, declare as follows:

7 as a witness, I could and would competently testify hereto.

8 2. On October 8, 2009, counsel for Defendant-Intervenors, Jesse Panuccio, requested by

16 limited to the Motion and Plaintiffs’ opposition.

22 attached hereto as Exhibit A.

23 4. Plaintiffs have submitted their Opposition to Plaintiffs’ Motion as early as practicable.

25 protective order that could be applied to documents produced in this case.

26 6. Plaintiffs’ efforts at obtaining information through third party discovery of

Gibson, Dunn &

1 incorporated by reference Defendant-Intervenors’ First Amendment privilege defense (and

4 Documents is attached as Exhibit B.

5 7. On September 1, 2009, Defendant-Intervenors served a subpoena seeking

12 individuals have evidence relevant to this case.

15 Los Angeles, California.

17 /s/ Christopher D. Dusseault

Gibson, Dunn &

1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

6 By: /s/ Theodore B. Olson

Gibson, Dunn &

Justice Lazarus, Rebecca

From: Dusseault, Christopher D.

From: Jesse Panuccio

From: Dusseault, Christopher D. [mailto:CDusseault@gibsondunn.com]

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]

From: Dusseault, Christopher D. [mailto:CDusseault@gibsondunn.com]

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]

From: Dusseault, Christopher D. [mailto:CDusseault@gibsondunn.com]

aknight@mgslaw.com; stroud@mgslaw.com; lbailey@mgslaw.com; therese.stewart@sfgov.org;

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]

1 ADVOCATES FOR FAITH AND FREEDOM

6 UNITED STATES DISTRICT COURT

16 Discovery Requests; 2) Defendant-Intervenors’ Motion for Protective Order (Doc # 187); 3)

23 3. More specifically, Schubert Flint shares in Defendant-Intervenors’ objection that

25 therefore incorporates all of Defendant-Intervenors’ First Amendment arguments and objects on

7 4. Schubert Flint objects to these Requests as vague, ambiguous, and/or unduly

24 and/or protected by the First Amendment—including documents not publically distributed. As

6 REQUEST FOR PRODUCTION NO. 2:

1 Defendant-Intervenors for production to Plaintiffs final versions of internet advertisements posted

4 REQUEST FOR PRODUCTION NO. 3:

24 actually aired on television.

28 producing, creating, or distributing.

26 Defendant-Intervenors for production to Plaintiffs final versions of documents responsive to this

1 REQUEST FOR PRODUCTION NO.7:

22 Defendant-Intervenors for production to Plaintiffs postings on public social networking sites

23 maintained for the Yes on 8 campaign.

25 REQUEST FOR PRODUCTION NO.8:

15 employees is therefore irrelevant.

21 REQUEST FOR PRODUCTION NO. 10:

7 political, strategic, or other reasons.

13 REQUEST FOR PRODUCTION NO. 11:

23 REQUEST FOR PRODUCTION NO. 12:

12 REQUEST FOR PRODUCTION NO. 13:

8 Attorneys for Schubert Flint Public Affairs, Inc.

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