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09-CV-2292 VRW DECLARATION OF ETHAN D.DETTMER IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL

COMPLIANCE WITH SUBPOENA BY DOUG SWARDSTROM

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Gibson, Dunn &

Crutcher LLP

GIBSON, DUNN & CRUTCHER LLPTheodore B. Olson, SBN [email protected] D. McGill,pro hac viceAmir C. Tayrani, SBN 2296091050 Connecticut Avenue, N.W., Washington, D.C. 20036Telephone: (202) 955-8668, Facsimile: (202) 467-0539

Theodore J. Boutrous, Jr., SBN [email protected] D. Dusseault, SBN 177557Ethan D. Dettmer, SBN 196046Sarah E. Piepmeier, SBN 227094Theane Evangelis Kapur, SBN 243570Enrique A. Monagas, SBN 239087333 S. Grand Avenue, Los Angeles, California 90071Telephone: (213) 229-7804, Facsimile: (213) 229-7520

BOIES, SCHILLER & FLEXNER LLPDavid Boies,pro hac vice

[email protected] Main Street, Armonk, New York 10504Telephone: (914) 749-8200, Facsimile: (914) 749-8300

Jeremy M. Goldman, SBN [email protected] H. Uno, SBN 2486031999 Harrison Street, Suite 900, Oakland, California 94612Telephone: (510) 874-1000, Facsimile: (510) 874-1460

Attorneys for PlaintiffsKRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, and JEFFREY J. ZARRILLO

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, et al.,

Plaintiffs,

and

CITY AND COUNTY OF SAN FRANCISCO,

Plaintiff-Intervenor,

v.ARNOLD SCHWARZENEGGER, et al.,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, et al.,

Defendant-Intervenors.

CASE NO. 09-CV-2292 VRW

DECLARATION OF ETHAN D. DETTMER

IN SUPPORT OF PLAINTIFFS MOTION

TO COMPEL COMPLIANCE WITH

SUBPOENA BY FORMERLY UNNAMED

EXECUTIVE COMMITTEE MEMBERDOUG SWARDSTROM

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Gibson, Dunn &

Crutcher LLP

I, Ethan D. Dettmer, declare as follows:

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

District of California. I am an partner in the law firm of Gibson, Dunn & Crutcher LLP, counsel of

record for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo in the

above-captioned matter. I make this declaration in support of Plaintiffs Motion to Compel the

Deposition of ProtectMarriage.com Executive Committee member Doug Swardstrom. The

information below is stated on personal knowledge and if called as a witness, I could and would

testify competently thereto.

2. Attached hereto as Exhibit A is a true and correct copy of a letter sent by

ProtectMarriage.com to Jim Abbott revealing the identity of ProtectMarriage.com Executive

Committee Member Edward Dolejsi, dated October 22, 2008.

3. Attached hereto as Exhibit B is a true and correct copy of Defendant-Intervenors

Response to Plaintiffs Second Set of Interrogatories, dated November 9, 2009.

4. Attached hereto as Exhibit C is a true and correct copy of an email from Kaylan

Phillips, counsel for Doug Swardstrom, to Ethan D. Dettmer, dated December 29, 2009.

5. Attached hereto as Exhibit D is a true and correct copy of a letter from Nicole Jo Moss

to Matthew McGill and Ethan Dettmer, dated December 15, 2009.

6. Attached hereto as Exhibit E is a true and correct copy of an email message from

Andrew Pugno to the Editorial Board ofThe Wall Street Journal, attaching a letter to the editor

signed by, inter alia, Doug Swardstrom as a member of the Executive Committee of

ProtectMarriage.com.

7. Attached hereto as Exhibit F is a true and correct copy of the Subpoena to Testify at a

Deposition or to Produce Documents in a Civil Action, directed to the Unnamed Yes on 8 Ad Hoc

Committee Member, c/o James Bopp, Jr., dated October 26, 2009.

8. Attached hereto as Exhibit G is a true and correct copy of an email from Kaylan

Phillips to Ethan D. Dettmer, dated October 27, 2009.

9. Attached hereto as Exhibit H is a true and correct copy of a letter from James Bopp,

Jr. to Ethan D. Dettmer, dated November 9, 2009.


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Gibson, Dunn &

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10. Attached hereto as Exhibit I is a true and correct copy of excerpts from the transcript

of the deposition of Mark Jansson, taken on December 3, 2009.

11. Attached hereto as Exhibit J is a true and correct copy of excerpts from the transcript

of the deposition of Edward Dolejsi, taken on December 16, 2009.

12. Attached hereto as Exhibit K is a true and correct copy of excerpts from the transcript

of the deposition of Ronald Prentice, taken on December 17, 2009.

I declare, under penalty of perjury under the laws of the United States, that these facts

are true and correct and that this Declaration is executed this 4th day of January, 2010, at San

Francisco, California.

/s/ Ethan D. DettmerEthan D. Dettmer


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Gibson, Dunn &

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ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

Pursuant to General Order No. 45 of the Northern District of California, I attest that

concurrence in the filing of the document has been obtained from each of the other signatories to this

document.

/s/ Theodore Boutrous, Jr

Theodore Boutrous, Jr.


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Exhibit 2

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O CT . 2 3 . 2 0 0 8 8 : 3 0 A M J I M A B B OT T A ND A S S O C I A T E S NO. 4 84 6- P. 1

October, ao, 2008

CertifiedMailReturn Receint ReauestedJim AbbottManagingPartnerAbbott Bt Associates/Abbott Realty Group435 4" AvenueSan Diego,CAgzioi

Dear Mr. Abbott,We write as the Executive Committee of ProtectMarriage.com, the coalitionof churches, organizations and individuals who qualified Proposition 8 for theNovember ballot. We represent the 61percent of California voters who affirmed in

2000 that, "Only mamiage between a man and a woman is valid or recognized inCalifornia." Proposition 8 will restore what four judges took away from thecitizernry- this same definition of marriage. As you know, the majority of citizensof California and the United States agree with us that marriage should be betweena man and a woman.

Equality California is advertising on its website that it has received acontribution of at least $io,ooo from you. Equality California opposes traditionalmarriage and i s working to defeat Proposition 8.We are sure that you would wantto review the way that they are using Abbott &Associates' name, since niai~ymoreof your clients support traditional marriage than support same sex marriage. Acopy of an advertising page from Equality California's website is enclosed for yourinformation.Be assured that this is not about lifestyle or rights for they are already codified andprotected in California. It is about a meaningFul tradition -marriage, which isageless, key to the well-being of our society and the rearing of children. It is tooimportant to be left to four unelected jurists.

915 L Street, Suite C-259 Sacramento CA 95814 916.446.2956


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O CT . 2 3 . 2 0 0 8 8 : 3 1 A M J I M A B B O T T A ND A S S O C I A T E S N O . 4 8 4 6 P . 2

Mr. Jim AbbottAbbott &AssociatesOctober 20,2008

We respectfully request that Abbott & Associates withdraw its support ofEquality California. Make a donation of a like amount to ProtectMamiage.comwhichwillhelp us correct this error and restore Traditional Marriage. A donationform is enclosed. We will be most grateful and will advertise on our websiteAbbotk &Associates9enerous contribution.

Were you to elect not to donate comparably, it would be a clear indicationthat you are in opposition to traditional marriage. You would leave us no otherreasonable assumption. The names of any companies and organizations thatchoose not to donate in like manner to ProtectMarriage.com but have given toEquality Californiawill be published. It is only fair fop Proposition 8 supporters toknow which companies and organizations oppose traditional marriage.

We will contact you shortly to discuss your contribution sincerely hoping toreceive your positive response.

The Executive Committee of ProtectMarriage.com and the millions ofCalifornians supporting Proposition 8 thank you for your thoughtfulconsideration of this request.

ProteetlMarriage.comBy:

Ron PrenticeYes on Prop 8,Campaign Chairman". . .

Edward DolejsiExecutive Director, California-. Catholic-Conference

Mark A. JanssonExecutive Comm ittee MemberEnclosures

Andrew PugnoGeneral Counsel

915 L Street, Suite G-259 Sacramento CA 95814 916.446.2956


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O CT . 2 3 . 2 0 0 8 8 : 3 1 A M J I M A B BO T T A ND A S S O C I A T E S NO. 4846-P . 3Page I of 6

SponsorsCOI-porate nd individual sponso rs rnaltc a significant investment, providing EQCA with critically-needccl resources to ac hieve equality.If you are interested in learning more about sponsorship benefits, including Equality Awardssponsorships, enlaii M ichellc Ortiz or call her at 415.581.0005 x307.EQCA's Sponsors Include,

$250,000 and above

$50,000 and above

$10,000 and above

bbotr antty' ..roup\ \ ! ;& ! iY: l l

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.. . .O CT . 2 3 . 2 0 0 8 8 : 3 1 A M J I M A B B O TT A ND A S S O C I A T E S NO. 4 84 6- P.

Donation Formyes;!X'II T ~ I ~ ! Enclosed i s my gift OT:$1,000 a $500 $250 $100 $50 $25 O t h e r $(Note! There is no limf on the amount of individ~ wl antrlbutlons M this Cismpalgn)

Clreck Darrztinns (WBMAIL)Please make yo ur c r eck payable to ProtectflrrlJr.r/agc.m - Yes on S'andmail th13 o m andpvrcheck m:

Pro[ectMarriage.com .Yes on BPO Bo x 162657Sacramento, CA 95Bl6

Credit Card ~ o ~ i a i i o n s(Please note there is a $10.00 minimum donation)Type of cred i t ~a rd :0 isa 0 MastcrCard 0 Amerlcan ExDressCard Number:A I I i i I A A A J 1 1 1 IJ Expiration Date:11Month)AA Year)Name as it appears on the card:Address as it appears on blll lng statements:City: State: ZIP,Your sigllaturc : Date:

Thank you! Please provide th e fo l lowing in forma t ion so we may accept your gif t .A l l f ie lds nvarkedwirh an acler.i$k (*) ate required by California Law.*'Full name of Individual, Company o r Organization

WMailing address

*City *State *Zip CountyuPhone rlumber Fax number E-mail Address... .

*Your Occupatiun *Your Employer ( I f self-employed, enter name of buslnsss)

I i ll also help by:Volunteering/speaking a t eventsPlacing a newsletter articlePosting a link on our Web slte4 Displaying a yard signfbumper stickerDistributing materials4 Wrltinq a letter to the editor

Thank you fo r your donation!Conwibulions lo PmleclM3rnaoe.Com - Yes on 8 ar e no1 tax deduable. Coroorale. PAC and oersonsl checks are accaetable. Thcre is no Im I on Ihe amounl of individual conlfibutions.~ ~Or i i r r I' 1.. r@;.r@r C IC.r c , 'ep?rtr.rr. I .e :07:ro.:)r: 01!10: o.rnore F0.62" ~ J I ~ P ? FrLc'(10.?0 I), : I s m l~a*n? @rtm:ons:o:nsconr 15e . nzrE.t[:rTIJr ir rerclir , i ? .i r , ' . ? .r t ta9 3le s:' 4ni rc? ??,eer Cxo Ccr rc.l:r i*r?l . e a ( a o~! l )OC1a-~lcra I c l e ~ o 3 r , : a ~ ' o : r i : a n o a ? n 2 ? 0 :?.wC3 I:,?i 3 .2~1OJ (~P[.:JIS I ;lit 12 (.. 1 l j (13aqr . OE ?O aalo?i :arrr?g? S!rP 5 i . ' art? In5.m 1 r t.o r Ir?g.sr r3 C.c81 Inr' TI ;'i

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DEFENDANT-INTERVENORS RESPONSE TO PLAINTIFFS SECOND SET OF INTERROGATORIES


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

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

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

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

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

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

*Admittedpro hac vice



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

Plaintiffs,

CITY AND COUNTY OF SAN FRANCISCO,

Plaintiff-Intervenor,

v.

ARNOLD SCHWARZENEGGER, in his official

capacity as Governor of California; EDMUND G.


DEFENDANT-INTERVENORS

RESPONSE TO PLAINTIFFS

SECOND SET OFINTERROGATORIES


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DEFENDANT-INTERVENORS RESPONSE TO PLAINTIFFS SECOND SET OF INTERROGATORIES


BROWN, JR., in his official capacity as AttorneyGeneral of California; MARK B. HORTON, in his

official capacity as Director of the California

Department of Public Health and State Registrar ofVital Statistics; LINETTE SCOTT, in her official

capacity as Deputy Director of Health Information

& Strategic Planning for the California Departmentof Public Health; PATRICK OCONNELL, in his

official capacity as Clerk-Recorder for the County

of Alameda; and DEAN C. LOGAN, in his official

capacity as Registrar-Recorder/County Clerk forthe County of Los Angeles,

Defendants,

and

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

Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)*[email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001

Telephone: (202) 393-8690, Facsimile: (202) 347-3622

*Admittedpro hac vice


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1DEFENDANT-INTERVENORS RESPONSE TO PLAINTIFFS SECOND SET OF INTERROGATORIES


Defendant-Intervenors (the Proponents), pursuant to Rules 26 and 33 of the Federal

Rules of Civil Procedure, file these responses to Plaintiffs Second Set of Interrogatories.

Proponents generally reserve the right to supplement and/or amend these responses to the extent

required and/or allowed by the Federal Rules of Civil Procedure. In particular Proponents reserve

the right to supplement and/or amend these responses as necessitated by ongoing legal and factual

development, discovery and/or judicial rulings in this case.

RESPONSES

INTERROGATORY NO. 4:

Identify each individual likely to have discoverable information that you may use to

support you claims or defenses in this action, along with the subjects of that information.

RESPONSE:

Proponents specifically reserve the right to supplement and/or amend this Response as

necessitated by ongoing legal and factual development, discovery, and/or judicial rulings in this

case. Subject to that reservation, Proponents identify the following individuals as likely to have

discoverable information that they may use to support their claims or defenses in this action:

Experts and rebuttal experts. Both Proponents and Plaintiffs experts and rebuttal expertsare likely to have discoverable information that Proponents may use to support their claims

or defenses in this action. The identity of these experts, along with the subjects of the

discoverable information they are likely to possess, is set forth in the reports and rebuttal

reports they have submitted in this action.

Organizations upon which Proponents have served subpoenas. Proponents have issuedsubpoenas to a number of organizations that opposed Proposition 8. These subpoenas

generally seek information related to the subject of the intent of the voters with respect to

Proposition 8. Proponents have taken the position that much, if not all, of this information

is irrelevant and/or privileged, and thus non-discoverable; nevertheless, should they fail to

obtain a judicial ruling consistent with those positions they may use information obtained

from the organizations they have subpoenaed to support their claims or defenses at trial.

Proponents refer Plaintiffs to the subpoenas they have issued for the identity of these


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organizations.

Attorney General Brown. Attorney General Brown is likely to have information related tothe intent of the voters with respect to Proposition 8. Proponents have taken the position

that much, if not all, of this information is irrelevant and/or privileged, and thus non-

discoverable; nevertheless, should they fail to obtain a judicial ruling consistent with those

positions they may use information obtained from the Attorney General to support their

claims or defenses at trial.

City and County of San Francisco. The City and County of San Francisco is likely to haveinformation related to the intent of the voters with respect to Proposition 8. Proponents

have taken the position that much, if not all, of this information is irrelevant and/or

privileged, and thus non-discoverable; nevertheless, should they fail to obtain a judicial

ruling consistent with those positions they may use information obtained from San

Francisco to support their claims or defenses at trial.

San Francisco is also likely to have discoverable information related to the economic

impact of same-sex marriage and the same-sex and opposite-sex marriages it has licensed.

Plaintiffs. The individual plaintiffs in this actionKristin M. Perry, Sandra B. Stier, PaulT. Katami, and Jeffrey J. Zarrillolikely have discoverable information on a number of

subjects that we may use to support our claims or defenses, including the history of

discrimination gays and lesbians have faced; whether sexual orientation can be changed;

whether a married mother and father provide the optimal child-rearing environment and

whether excluding same-sex couples from marriage promotes this environment; whether

the availability of opposite-sex marriage is a meaningful option for gays and lesbians; and

the difference in actual practice of registered domestic partnerships, civil unions and

marriage, including whether married couples are generally treated differently than

domestic partners in governmental and non-governmental contexts.

California agencies and officials upon which Proponents have served subpoenas.Proponents have issued subpoenas to the California Secretary of State and the Office of

Vital Records in the California Department of Health. The former is the custodian of


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records related to domestic partnerships; the latter of records related to marriages and

births. These records constitute discoverable information that we may use to support our

claims or defenses at trial. Proponents refer Plaintiffs to these subpoenas for additional

information.

The Williams Institute, UCLA School of Law, Box 951476, Los Angeles, CA, 90095,(310) 267-4382. The Williams Institute is a think tank that studies issues related to sexual

orientation and same-sex marriage. It is likely to have discoverable information related to

those issues that we may use to support our claims or defenses at trial, including

information related to the potential economic impact of same-sex marriage and the

characteristics of same-sex couples.

Proponents also generally note that they may use at trial to support their claims or defensesany individuals identified by Plaintiffs as possessing discoverable information.


Identify each individual whom you plan to call as a witness at trial in this action.

RESPONSE:

Proponents object to this Request to the extent it purports to impose obligations beyond

those set forth in the orders of the Court pertaining to the timing of the disclosure of the identity of

witnesses. See Doc # 164at 2. Subject to and without waiving this objection, Proponents note

that they will, consistent with the orders of the Court, produce at the appropriate time the identity

of each individual they plan to call as a witness at trial in this action.


Identify each person who was a member of the ProtectMarriage.com executive committee

on or before November 4, 2008.

RESPONSE:

Proponents object to this Request as calling for information privileged from disclosure

under the First Amendment. As Proponents have explained, see, e.g.,Hrg of November 2, 2009,

Tr., the identity of members of the ProtectMarriage.com executive committee whose names have

never been disclosed publicly is privileged from disclosure under the First Amendment.


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Without waiving this objection, Proponents state that the ProtectMarriage.com ad hoc

executive committee, established in connection with the Proposition 8 campaign, had four

members from November 27, 2007, when the official Proposition 8 campaign committee was

formed, through November 4, 2008. The identity of two of those individuals has been publicly

disclosed, and Proponents have already provided that information to Plaintiffs. Nevertheless,

Proponents will identify them again here:

Ron Prentice2900 Adams Street, Suite C25Riverside, CA 92504

Mark Jansson9110 Union Park WaySuite 118

Elk Grove, CA 95624

It was recently brought to our attention that a third member of the ad hoc executive

committees identity is also publicly known. His information is as follows:

Edward DolejsiCalifornia Catholic Conference1119 K StreetSacramento, CA 95814

Producing the identity of the member whose name has not been disclosed publicly is

objectionable on First Amendment Grounds. Proponents have already provided Plaintiffs with the

names of counsel for that member:

Doe No. 1Represented by James Bopp, Jr.BOPP, COLESON & BOSTROM1 South 6th StreetTerre Haute, IN 47807(812) 232-2434


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Monagas, Enrique A.

Subject: RE: Unnamed Member of the Proposition 8 Committee

OriginalMessage

From:KaylanPhillips[mailto:[email protected]]Sent:Tuesday,December29,20091:50PM

To:Dettmer,EthanD.Cc:[email protected];BoutrousJr.,TheodoreJ.Subject:RE:UnnamedMemberoftheProposition8Committee

Mr.Dettmer,

Respectfully,itwasyourdecisionnottoconductthedepositionwithinareasonabletimeframe. Youwaivedyouropportunitytodeposeourclientpursuanttothesubpoenabynot

acceptingourproposeddatesorrequestingadditionaldateswithinthediscoveryperiod.Ourinitialobjectionstothesubpoenaweremadeingoodfaithandweretimelysubmitted.

Pleasekeepusinformed,asnecessary,ofanyactionsyouintendonundertakingregardingthismatter.

KaylanLytlePhillipsBopp,Coleson&Bostrom1South6thStreetTerreHaute,IN 478073510voice:8122322434(ex.42)fax:8122343736email:[email protected]

NOTICEANDDISCLAIMERS

Theprecedingmessagemaybeconfidentialorprotectedbytheattorneyclientprivilege.Itisnotintendedfortransmissionto,orreceiptby,anyunauthorizedpersons.Ifyoubelievethatthismessagehasbeensenttoyouinerror,please(i)donotreadit,(ii)replytothesenderthatyouhavereceivedthemessageinerror,and(iii)eraseordestroythemessage.Totheextentthisemailmessagecontainslegaladviceitissolelyforthebenefitoftheclient(s)ofBopp,Coleson&BostromrepresentedbytheFirmintheparticularmatterthatisthesubjectofthismessageandmaynotberelieduponbyanyotherparty.

OriginalMessageFrom:Dettmer,EthanD.[mailto:[email protected]]Sent:Tuesday,December29,200912:15PMTo:[email protected]:[email protected];BoutrousJr.,TheodoreJ.Subject:RE:UnnamedMemberoftheProposition8Committee

DearKaylan:

Thanksforyouremail,whichIforwardedtotheCooper&Kirklawyers.


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2

Wenowhavetheunredacteddocuments.

Wedointendtotakeyourclient'sdepositionandobtaintherequesteddocuments,andwewillrequestrelieffromtheCourtifnecessary. Yourobjectionstothesubpoenaandtheprohibitiveconditionsyouplacedonanydepositionwerebasedonanassertionthatyourclient'sidentitywasconfidential,neverpubliclydisclosed,andsubjecttoFirstAmendmentprotection. Wehadnoreasontodoubtthefactualbasisofthisassertionatthetime,butasisnowclear,thatassertionwasnotcorrectandyourclient'sidentityhadbeensenttoatleasttwomediaoutletsincludingtheWallStreetJournal. Giventhatyourassertionsof

privilegeandconfidentialitywerebasedonincorrectrepresentationsoffact,yourproceduralobjectionsarenotwelltaken.

Pleaseletmeknowwhetheryouintendtoproducedocumentsandmakeyourclientavailablefordeposition,orwhetherweshouldseekrelieffromtheCourt.

ThanksverymuchandIlookforwardtohearingfromyou.

Ethan

OriginalMessageFrom:kphillips[mailto:[email protected]]

Sent:

Tuesday,

December

22,

2009

2:21

PM

To:Dettmer,EthanD.;BoutrousJr.,TheodoreJ.Cc:[email protected];[email protected]:UnnamedMemberoftheProposition8Committee

Mr.Dettmer,

Wehavedecidednottoseekaprotectiveorderforthetwodocumentsinquestion. Wewill

informDefendantIntervenorsthattheymayproducethedocumentswithouttheredactions.

Regardingthedeposition,wesentyoualistofpossibledepositiondatesalongwithourtimelysubpoenaobjections. Itwasthenyourresponsibilitytorespondandletusknowwhich

ofthoseavailabledateswouldworkforadeposition. Wedidnothearbackfromyouroffice.Sinceyouserveduswithasubpoenaducestecum,anydocumentswouldhavebeenproducedatthedeposition. ThecourtorderedthatdiscoverybecompletedbyNovember30th.So,thetimefordiscoveryisnowclosed.

Thankyou.

KaylanPhillipsBopp,Coleson&Bostrom1South6thStreetTerreHaute,IN 478073510

voice:

812

232

2434

(ex.

42)

fax:8122343736email:[email protected]


Theprecedingmessagemaybeconfidentialorprotectedbytheattorneyclientprivilege.Itisnotintendedfortransmissionto,orreceiptby,anyunauthorizedpersons.Ifyoubelievethatthismessagehasbeensenttoyouinerror,please(i)donotreadit,(ii)replytothesenderthatyouhavereceivedthemessageinerror,and(iii)eraseordestroythemessage.


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EExxhhiibbiitt DD


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Nicole J. [email protected]

Cooper & KirkLawyers

A Professional Limited Liability Company1523 New Hampshire Ave., N.W.

Washington, D.C. 20036 (202) 220-9600Fax (202) 220-9601

December 15, 2009

BY EMAIL and HAND DELIVERY

Matthew McGill, Esq.Ethan Dettmer, Esq.

1050 Connecticut Ave., N.W.

Washington, D.C. 20036-5306

Re: Perry, et. al. v. Schwarzenegger, et. al., (U.S.D.C., N.D. Cal., C-09-2292 VRW)

Dear Matt and Ethan:

Enclosed herewith please find a supplemental production of non-privileged documents

that we have determined are responsive to Plaintiffs First Set of Requests for Production.

The bulk of these documents are e-mail communications that one ofProtectMarriage.coms spokespersons, Sonja Eddings Brown, had with individual reporters in

the course of distributing press releases and media advisories. Likewise, a handful of the

documents are communications from Andrew Pugno to individual reporters or radio andtelevision personnel. We had previously produced the underlying press releases and media

advisories, but had not included the surrounding e-mails with reporters. Upon furtherconsideration of Plaintiffs Request No. 1, we have determined that, under its broadest reading,these communications constitute emails distributed to members of the media regarding

Proposition 8, even though the emails themselves were clearly not for public distribution.

With respect to the above noted communications, I am obliged to bring to your attentionone specific document. It is a communication from Mr. Pugno to a member of the press

concerning requested corrections to a news article. The communication inadvertently identified

a member of the protectmarriage.com executive committee who has otherwise remainedanonymous outside of the campaign. This document has not been made public and thus this Doe

members identity is still not publicly known. Pursuant to instructions from this Doe members

counsel, we have produced the document in redacted form.

We are also supplementing our production with some additional materials related to the

organization of which Dr. Bill Tam is the Executive Director the Traditional Family Coalition(TFC). In light of Dr. Tams testimony and requests by counsel at Dr. Tams deposition, we

have concluded that these documents fall outside of a claim of First Amendment privilege. As

his deposition makes clear, you are already aware of the existence of TFCs website

(http://tfcus.homestead.com/), on which it is possible more responsive materials may reside.


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Matthew McGill, Esq.

Ethan Dettmer, Esq.

December 15, 2009Page 2 of 2

Lastly, many of the remaining documents are blast emails and flyers, similar to those

previously produced. We could not verify with certainty that these materials were included inour initial production effort that was geared toward identifying and producing all suchdocuments, so out of an abundance of caution, we are providing (or re-providing) them herewith.

Sincerely,

Nicole Jo Moss

Cc: All counsel (w/o enclosures)


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EExxhhiibbiitt EE


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Exhibit B


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DEFINT_PM_003660


REDACTED
http:///reader/full/ProtectMarriage.com

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DEFINT_PM_003661

http:///reader/full/ProtectMarriage.com

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DEFINT_PM_003662

http:///reader/full/ProtectMarriage.comhttp:///reader/full/ProtectMarriage.com

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DEFINT_PM_003663


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Exhibit F


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A 0 88A (Rev. 01/09) Subpoena to Testify at a Deposition or to Produce D ocuments in a Civil Action

UNITED TATES ISTRICT OURTfor the

Northern D istrict of CaliforniaKristin M. Perry , et al.

Plainlzff)

v. 1) Civil Action No. 09-cv-2292 VRWArnold Sc hwa rzene gger, et al. 1) (If the action is pending in another district, state where:Defendant 1

SUBPOENA TO TESTIFY AT A DEPO SITIONOR TO PRODU CE DOCUM ENTS IN A CIVIL ACTION

To: Unnam ed "Yes on 8" Ad Hoc Com mittee MemberC/O a m es Bopp, Jr., BOPP, COLESON & BOSTROM, 1 South 6th St., Terre H aute, IN 47807d Testimony: YOU ARE COMM ANDE D to appear at the time, date, and place set forth below to testify at adeposition to be taken in this civil action. If you are an organization that is no t a party in this c ase, you must designateone or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalfabout the following matters, or those se t forth in an attachment:

The deposition will be recorded by this method: Both stenoara~hicallv nd by videotape.

Place: GIBSON, DUNN & CRUTCHER LLP555 Mission Str eet , Suite 3000Sa n Francisco. CA 941 05-2933- - - -@froduction: You, or your representatives, must also bring with you to the deposition the following documents,electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of thematerial:S e e attached EXHIBIT A for list of re qu este d d ocum ents a nd electronically stored information.

-Date and Time:11/09/2009 09:30

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule45 (d) an d (e), relating to your duty to respond to this subpoen a and the potential consequences o f not doing so, areattached.

The name, address, e-mail, and telephone num ber of the attorney representing (name ofparty) PlaintiffsKristin M. Perry, et al. ,who issues or requests this subpoena, are :Ethan Dettmer ([email protected])GIBSON, DUNN & CRUTCHER LLP, 55 5 Mission Stre et, Suite 3000, San Francisco, CA 94105-293 3T: (415 ) 393-8292; F: (415) 374-8444


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A 0 88A (Rev. 01109)Subpo ena to Testify at a Deposition or to Produce Docum ents in a Civil Action (Page 2)Civil Action No. 09-CV-2292VRW

PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

This subpoena for (name of individual and t ille,.fan y) --was received by me on (date)Cl I personally served the subpoena on the individual at (place)

on (date) ; orCJ I left the subpoena at the individual's residence or usual place of abod e with (name)

, person of suitable age and discretion who resides there,on (date) , nd mailed a copy to the individual's last known address; or0 served the subpoena on (name of individual) ,who isdesignated by law to accept service of process on behalf of (name oforganization)

on (date) ; rCJ I returned the subpoena unexecuted because -- ;orCl Other (spec~fy):

Unless the sub poena was issued on behalf of the United States, or one of its officers or agents, I have alsotendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of$

My fees are $ for travel and $ for services, for a total of $ 0.00

I declare under penalty of perjury that this information is true.

Date: -Server's signaturePrinted name and title

Server's addressAdditional information regarding attempted service, etc:


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A 0 88A (Rev. 01109) Subpoena to Testify at a Deposition or to P roduce Documents in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)(c) Protecting a Person Subjec t to a Subpoena.(1) Avoiding Undue Burden or Expense; Sanctions. A party orattorney responsible for issuing and serving a subpoena mu st takereasonable steps to avoid imposing undue burden or expense on aperson subject to the subpoen a. The issuing court must enforce thisduty and im pose an appropriate sanction- hich may include lostearnings and reasonable attorney's fees- n a party or attorneywho fails to comply.

(2)Comm and to Produce Materials or P ermit Inspection.( A )Appearance Not Required. A person commanded to producedocuments, electronically stored information, or tangible things, orto permit the inspection of premises, need not appear in person at theplace of production or inspection unless also commanded to appearfor a deposition, hearing, or trial.(B ) Objections. A person commanded to produce documents ortangible things or to permit inspection may serve on the party orattorney designated in the subpoena a written objection toinspecting, copying, testing or sampling any or all of the materials orto inspecting the premises - or to producing electronically storedinformation in the form or forms requested. The objection must beserved before the earlier of the time specified for comp liance or 14days after the subpoena is served. If an objection is made, thefollowing rules apply:(i) At any time, on notice to the commanded person, the servingparty may mo ve the issuing court for an order compelling productionor inspection.(ii) These acts may be required on ly as directed in the order, andthe order must protect a person wh o is neither a party nor a party'sofficer from significant expense resulting from compliance.(3) Quashing or Modifling a Sulpoena.

(A )When Required. On timely mo tion, the issuing court mustquash or modify a subpoena that:(i ) fails to allow a reasonable time to comply;(ii) requires a person who is neither a party nor a party's officerto travel more than 100 miles from where that person resides, isemployed, or regularly transacts business in person- xcept that,subject to Rule 45(c)(3)(B)(iii), the person may be comman ded toattend a trial by traveling from any such place within the state wherethe trial is held;(iii) requires disclosure of privileged or other protected m atter, ifno exception or waiver applies; or(iv) subjects a person to undue burden.( B ) When Permitted. To protect a person subject to or affected bya subpoena, the issuing court may, on motion, quash or modify thesubpoena if it requires:(i) disclosing a trade secret or other confidential research,development, or commercial information;(ii) disclosing an unretained expert's opinion or information thatdoes not describe specific occurrences in dispute and results fromthe expert's study that was not requested by a party; or(iii) a person who is neither a party nor a party's officer to incursubstantial expense to travel more than 100 miles to attend trial.(C ) Specifying C onditions as an Alternative. In the circumstancesdescribed in Rule 45(c)(3)(B), the court may, instead of quashing o rmodifying a subpoen a, order appearance or production underspecified conditions if the serving p arty:(i) show s a substantial need for the testimony or material thatcannot be otherwise met without undue hardship; and(ii) ensures that the subpoenaed person will be reasonablycompensated.

(d) Duties in Responding to a Subpoena.(1) Protlucing D ocuments o r Electronically Stored Znformadbn.These procedures apply to producing documents or electronicallystored information:(A)Documents. A person responding to a subp oena to producedocuments must produce them as they are kept in the ordinarycourse of business or must organize and label them to correspond tothe categories in the demand.(B) Form for Producing Electronically Stored Information NotSpeciJied If a subpoena does not specify a form for producingelectronically stored information, the person responding mustproduce it in a form o r forms in which it is ordinarily maintained orin a reasonably usable form or forms.(C)Electronically Stored Infarmation Produced in Only OneForm. The person responding need not produce the sameelectronically stored information in more than one form.(D ) Inaccessible Electronically Stored Information. The personresponding need not provide discovery of electronically stored

information from sources that the person identifies as not reasonablyaccessible because of undue burden or cost. On motion to co mpeldiscovery or for a protective order, the person responding m ust showthat the information is not reasonably accessible because of undueburden or cost. If that showing is made, the court may nonethelessorder discovery from such source s if the requesting party showsgood cause, considering the limitations of Rule 26(b)(2)(C). Thecourt may specify conditions for the discovery.(2) Claiming Privilege or Prote cfion( A ) nformation Withheld. A person withholding subpoenaedinformation under a claim that it is privileged or subject toprotection as trial-preparation material must:(i) expressly make the claim; and(ii) describe the nature of the withheld documen ts,commun ications, or tangible things in a man ner that, withoutrevealing information itself privileged or protected, will ena ble theparties to assess the claim.(B ) Information Produced. If information produced in response to asubpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may no tify anyparty that received the information o f the claim and the basis for it.After being notified, a party m ust promptly return, sequester, ordestroy the specified information and any co pies it has; must not useor disclose the information until the claim is resolved; must takereasonable steps to retrieve the information if the party disclosed itbefore being notified; and may prom ptly present the information tothe court under seal for a determination of the claim. The personwho produced the information must preserve the information untilthe claim is resolved.(e) Contempt. The issuing court may hold in contem pt a personwho, having been served, fails without adequate excuse to obey thesubpoena. A nonparty's failure to obey must be excused if thesubpoena purports to require the non party to attend or produce at aplace outside the limits of Ru le 45(c)(3)(A)(ii).


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EXHIBIT ADEFINITIONS:

1 . "You" and "your" mean the person identified in the Sub poena to which this Exhibitis attached. It includes all agents or representatives of that person.

2 . "Proposition 8" means the proposition that was placed on the Novembe r 2008 ballotin the State of California and became known as "Proposition 8" for purposes of that election. Noreference to "Proposition 8" shall be construed as limited by the date on which Propo sition 8received its official number ("8") or ballot title on the Novem ber 2008 California ballot.

3. "Document" shall be synon ymou s in meaning and equal in scope to the broadestmeaning provided by Rule 34 of the Federal R ules of Civil Procedure, including without limitation,hard cop ies, electronic docum ents, electronic or comp uterized data compilations, software, softwareimages, or downloads. This term shall apply to docume nts, whether in hard copy or electronicform, on your compu ters or the com puters of your agents or representatives, whether provided byyou to such individuals or otherwise.

4. "Co mm unica tion~y ean s the transmittal of information in the form of facts, ideas,inquiries, thoughts, or otherw ise, and without limitation as to means or method.

5 . "Protect Marriage" m eans Proposition 8 Campaign Committee ProtectMarriage.com-Yes on 8, a Project of California Renewal.

6 . Th e terms "any," "all," "each," a nd "every" should be understood in either their mostor least inclusive sense as necessary to bring within the scope of the discovery requ est all responsesthat might otherwise be construed to be outside of their scope.

7. Each of the words "reflecting," "relating," "supporting," "concerning," "evidencing,"and "referring" as used herein include the comm on meanings of all those terms, as well as indirectand direct references to the subject matter set forth in the d ocume nt request.

8. The words "and" and "or" shall be construed conjunctively or disjunctively,whichever m akes the request most inclusive.


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INSTRUCTIONS:1. In producing do cumen ts and things, you are required to furnish all docum ents or

things in your possession, custody, or control, or known or available to you, regardless of whethersuch docu ments or things are possessed directly by you or your agents, representatives, accountants,attorneys, investigators, and consultants.

2. All docum ents should be produced in the same order as they are kept or maintainedby you in the ordinary course of business, or the docum ents should be organized and labeled tocorrespond to the categories of the docum ents requested below.

3. All electronically stored information should be produced in the sam e manner as it iskept in the ordinary course of business, or that information should be organized and labeled tocorrespond to the categories in these requests.

4. If you object to a portion or an asp ect of a request, state the grounds for yourobjection with specificity. If any docum ent called for by these requests is withheld because youclaim that such information is protected un der the attorney-client privilege, work product doc trine,or other privilege or doctrine, you are requested to so state, specifying for each such docum ent itstitle, subject matter, sender, author, each person to whom the original or copy wa s circulated,recipients of copies, the persons present du ring the com munication, the identity of the privilegebeing asserted, and the basis upon wh ich the privilege is claimed.

5 . If production of any portion o f a docum ent is required pursuant to these requests,produce the entirety of that docum ent.

6. If any docum ent cannot be produced in full, produce to the extent possible,specifying the reasons for your inability to produ ce the remainder and stating whatever information,knowledge, or belief you do have concerning the portion not produced.

7. Each request applies to the period fiom January 1 ,20 06 through and including thedate of production.REQUESTS:

1. All versions of any docu ments that reflect commu nications relating to Proposition 8between you and those who (1) had an y role in managing or directing ProtectMarriage.com or the

2EXHIBIT A


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Yes on 8 campa ign, or (2) provided adv ice, counseling, information, or services with respect to theefforts to en courage persons to vote for Proposition 8 or otherwise to educate persons abou tProposition 8, including its mean ing, intent, effects if enacted, or effects if rejected; includingcomm unications among a nd between any two or mo re of the following persons or entities:Defendant-Intervenors, mem bers of the "Yes on 8" campaign's Ad H oc Comm ittee, FrankSchubert, Jeff Flint, Sonia Eddings Brow n, Andrew Pu gno, Ch ip White, Ron Prentice, CheriSpriggs Hernandez, Rick Ahern, Laura Saucedo Cunningham , Schubert Flint Public Affairs,Lawrence Research, Bader & Associates, Bieber Comm unications, Candidates Outdoor GraphicService Inc., Cardinal Comm unication Strategies, Church C omm unication Network Inc., TheMon aco Group, Con nell Donatelli, Message Impact Consulting, K Street Com munications,Marketing Com munications Services, Sterling Corp, and JRM Enterprises.

2. All doc uments, including without limitation literature, pamph lets, flyers, direct mail,advertisements, emails, text messages, press releases, or other m aterials, that w ere d istributed tovoters or potential voters in coordination with Protect Marriage regarding Propo sition 8.


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1

Monagas, Enrique A.

From: Kaylan Phillips [[email protected]]Sent: Tuesday, October 27, 2009 9:11 AMTo: Dettmer, Ethan D.; Monagas, Enrique A.Cc: [email protected]: RE: Perry v. Schwarzenegger, N.D. Cal. No. C 09-2292 VRW

Mr.Dettmer,

Wevereviewedthesubpoena.Wedoneedmoretimetofinalizeourobjections.However,sothatwemaybeginto

cometoanagreement,weareprovidinganinitiallistofrequirementsbelow.

1) JimisunavailableonNovember9thashewillbearguingbeforetheEasternDistrictofLouisianaonthatday.We

willseekourclientsavailabilityandprovidealternativedatesassoonaspossible.

2) Regardingthedepositionitself:

a. Wedonotagreetothedepositionbeingvideotaped;

b. Ourclientwillnotdisclosehisorheridentityatanypoint.

3) Regardinganydocumentproduction: allidentifyinginformationwillberedactedpriortoproduction.

4) Further,wewillseekaprotectiveorder.Wemusthavethisorderinplacepriortothedeposition.Whileweare

stillfinalizingwhatwillbeincluded,ataminimumitwillinclude:

a. AllprotectionsbeingaffordedtotheProposition8committee;

b. Specificprotectionstopreserveourclientsanonymity;

c. Anagreementthat,ifourclientsidentityisdiscovered,thepartieswillagreetokeeptheclient

anonymous(absentacourtordertothecontrary).

Ilookforwardtoworkingwithyou.

KaylanLytlePhillips

Bopp,

Coleson

&

Bostrom

1South6thStreet

TerreHaute,IN 478073510

voice:8122322434(ex.42)

fax:8122343736

email:[email protected]


Theprecedingmessagemaybeconfidentialorprotectedbytheattorneyclientprivilege.

Itisnotintendedfortransmissionto,orreceiptby,anyunauthorizedpersons.Ifyoubelieve

thatthismessagehasbeensenttoyouinerror,please(i)donotreadit,(ii)replyto

thesenderthatyouhavereceivedthemessageinerror,and(iii)eraseordestroythemessage.

Totheextentthisemailmessagecontainslegaladviceitissolelyforthebenefitoftheclient(s)

ofBopp,Coleson&BostromrepresentedbytheFirmintheparticularmatterthatisthe

subjectofthismessageandmaynotberelieduponbyanyotherparty.


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2

From: [email protected]: [email protected]: [email protected]: 10/26/2009 6:54:07 P.M. Eastern Daylight TimeSubj: Perry v. Schwarzenegger, N.D. Cal. No. C 09-2292 VRW

Dear Jim:

Thanks again for taking the time to talk with us earlier today, and thanks very much for accepting service of thissubpoena by email on your client's behalf. As we discussed, the attached subpoena is directed to "Unnamed'Yes on 8' Ad Hoc Committee Member" because the Prop 8 Proponents have not divulged the individual's name.Although we have noticed the production and deposition for November 9 here in San Francisco, we wouldcertainly like to discuss with you your client's responses and the time and place of deposition so as to make themas convenient as possible, while still abiding by the Court's schedule.

For your convenience, I have also attached copies of the Court's recent orders related to the Prop 8 Proponents'First Amendment objections.

I look forward to talking with you again shortly.

Best,

Ethan___________________________ Ethan D. DettmerGibson, Dunn & Crutcher LLP555 Mission Street, Suite 3000San Francisco, California 94105Phone: (415) 393-8292Fax: (415) 374-8444

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Exhibit H


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Mr. Ethan Dettmer

November 9, 2009

Page 2

schedule and the following dates are available for deposition: November 18, November 19,

November 20, or November 24.

Despite these objections, the Unnamed Committee Member reserves any and all

objections as to competency, relevance, materiality, privilege, admissibility, or any other grounds

on which an objection may be made. The Unnamed Committee Member expressly reserves the

right to object to further discovery into the subject matter of these requests. Any objection that

inadvertently discloses privileged documents/information is not intended to and shall not be

deemed or construed to constitute a waiver of any privilege or right of the Unnamed Committee

Member.

General Objections

1. The Unnamed Committee Member objects to the Requests to the extent that they purport to

call for the production of documents/information that: (a) contain privileged attorney-client

communications; (b) constitute attorney work product; (c) disclose the mental impressions,

conclusions, opinions, or legal theories of any attorneys or other representatives of the

Unnamed Committee Member; (d) were prepared in anticipation of litigation; or (e) are

otherwise protected from disclosure under applicable privileges, immunities, laws, or rules.

While the Unnamed Committee Member does not intend to produce any such privileged or

protected documents or information, should any inadvertent disclosure occur, it shall not be

deemed a waiver of any privilege.

2. The Unnamed Committee Member specifically incorporates by reference the objections andarguments set forth by Defendant-Intervenors in the following: (a) Defendant-Intervenors

responses to Plaintiffs Discovery Requests; (b) Defendant-Intervenors Motion for

Protective Order (Doc. 187); (c) Defendant-Intervenors Reply in Support of Motion for

Protective Order (Doc. 197); and (d) in any stay and/or appeals papers Defen-

dant-Intervenors have filed or may file regarding Plaintiffs attempt to discover internal

campaign strategy documents and/or nonpublic and/or anonymous communications related

to Proposition 8. These objections are based, inter alia, on relevance, burden, and First

Amendment privilege grounds.

3. The Unnamed Committee Member objects to the Requests to the extent that they are vague,

not limited in scope, unreasonably broad and burdensome, or beyond the scope of eithercategory of permissible discovery under Fed. R. Civ. P. 26(b)(1). See Fed. R. Civ. P.

26(b)(1) advisory committees note (2000).

4. The Unnamed Committee Member objects to the instructions accompanying the Requests

to the extent that they purport to impose obligations beyond those imposed by the Federal

Rules of Civil Procedure or local rules and to the extent they require the Unnamed Commit-


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Mr. Ethan Dettmer

November 9, 2009

Page 3

tee Member to conduct an unreasonable search for responsive documents or a search for

documents that are not discoverable under Rule 26(b)(1), requiring a search in locationswhere the Unnamed Committee Member does not believe responsive materials are likely to

be found, and requiring a restoration and review of electronic data tapes containing an

unknown volume of archived data that is not readily available.

5. The Unnamed Committee Member objects to the subpoena as unduly burdensome and

beyond the scope of obligations imposed by the Federal Rules of Civil Procedure to the

extent that it seeks information and documents that: (a) are already in Plaintiffs possession;

(b) are duplicative of documents already produced by Defendant-Intervenors; or (c) are as

equally available to Plaintiffs from other sources that are more convenient, less burden-

some, and/or less expensive. To the extent Plaintiffs Requests place an obligation on the

Unnamed Committee Member to produce documents and information from entities and/orindividuals who are not uniquely within the Unnamed Committee Members custody and

control, the Requests are objectionable. See Fed. R. Civ. P. 26(b)(2)(C)(ii).

6. The Unnamed Committee Member objects to the subpoena to the extent the benefit of it is

outweighed by its lack of importance in resolving the issues at stake in this case. See Fed.

R. Civ. P. 26(b)(2)(i), (iii) (discovery cannot be unreasonably cumulative or duplicative, or

. . . obtain[able] from some other source . . . and is limited if the burden or expense of the

proposed discovery outweighs its likely benefit, taking into account . . . [inter alia] the

importance of the proposed discovery in resolving the issues.)

7. The Unnamed Committee Member objects to the subpoena as overly broad to the extent itseeks documents that are not relevant to the claims or defenses of any party in the above

captioned case or not reasonably calculated to lead to the discovery of admissible evidence.

See Fed. R. Civ. P. 26(b)(1). Because virtually all of the discovery sought by the subpoena

is legally irrelevant and not designed to lead to the discovery of admissible evidence, it

would be objectionably burdensome for the Unnamed Committee Member to have to

collect, review, produce, and/or log all such documents. Because of the irrelevant nature of

these materials, the time and expense that would be required to gather and produce them

cannot be reasonably justified.

8. The Unnamed Committee Member objects to the subpoena to the extent that it seeks

information, documents, or other materials protected from disclosure by the First Amend-ment. Communications that reflect core First Amendment activity e.g., political views,

legislative or political strategy, religious beliefs, voter intent, political speech, and associa-

tional activity are not an appropriate subject of discovery and are protected from disclo-

sure under applicable law.

9. The Unnamed Committee Member objects to the subpoena to the extent it calls for the


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Mr. Ethan Dettmer

November 9, 2009

Page 4

production of documents and information postdating the passage of Proposition 8 in

November of 2008. Not only are such communications and materials irrelevant to anyconceivable issue in this lawsuit, their disclosure will violate the Unnamed Committee

Members First Amendment rights.

10. The Unnamed Committee Member objects to the subpoena on the grounds that it imposes

undue burden and expense in violation of Fed. R. Civ. P. 45(c), including but not limited to

requiring the Unnamed Committee Member to produce electronically-stored information

that is not reasonably accessible and/or the production of which would entail substantial

cost. To the extent the Unnamed Committee Member is required to produce documents

that are not reasonably accessible and/or is required to undertake unduly burdensome

measures in response to the subpoena, the cost of any production (including but not limited

to any electronic media restoration, processing, scanning, exporting, storage, etc.) would beborne by Plaintiffs.

11. The Unnamed Committee Member objects to the subpoena, and to the definitions and

instructions included therewith, to the extent that it calls for the production of documents or

information beyond what is authorized by the order of October 1, 2009 (Doc. 214) and the

order of October 23, 2009 (Doc. 237) issued by the District Court for the Northern District

of California in this case. Specifically, the Court requires that any document requests must

share a clear nexus with the information put before the voters, for example, to be

relevant. Doc. 214 at 16. Discovery not sufficiently related to what the voters could have

considered is not relevant and will not be permitted.Id.

12. The Unnamed Committee Member objects to the subpoena as being inconsistent with

Federal Rule of Civil Procedure 45(c)(1), which requires your clients to take reasonable

steps to avoid imposing undue burden or expense on third parties. A search of the

Unnamed Committee Members files for the material identified in the subpoena would

entail an enormous amount of staff time by a non-party. Such a burden is unreasonable in

any circumstance, but particularly onerous here in light of Plaintiffs ability to obtain the

information necessary for their claims and defenses elsewhere.

13. The Unnamed Committee Member objects to the extent the subpoena seeks information

and/or documents protected from discovery by privileges arising from the First Amend-

ment, including but not limited to the rights to associate and to petition the government.

14. The Unnamed Committee Member objects to Plaintiffs seeking to conduct a deposition as

such an event would violate the Unnamed Committee Members constitutional rights of

privacy and association. Furthermore, there is no evidence that such testimony is relevant

or would lead to the production of admissible evidence, especially beyond that already

produced by Intervenor-Defendants or already in the possession, custody, or control of the


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Plaintiffs.

Request #1

15. Specifically, the Unnamed Committee Member objects to Request #1 as calling for

irrelevant documents and documents privileged from disclosure under the First Amend-

ment specifically including documents not distributed to the electorate at large.

16. The Unnamed Committee Member objects to these Requests to the extent that they are

broader than the requests presented to the parties. Specifically, Request #1 seeks all

communications relatingto Proposition 8, with no contextual filters like the ones served

upon the parties and required by the Court. Furthermore, the Unnamed Committee

Member objects to the extent that these Requests are broader than even the understandingbetween the parties. For example, the parties had an understanding that Plaintiffs were not

seeking internal communications among and between the Defendant-Intervenors. No such

narrowing is present in this Request.

17. The Unnamed Committee Member objects to Request #1 to the extent that it is contrary to

the Courts October 1, 2009, and October 23, 2009, orders. This request is far too broad

and is not sufficiently related to what voters could have considered. It is not limited to

campaign strategy, id. at 17, messages to be conveyed to voters, id., nor is it limited to

communications just between Proponents and those with a directorial or managerial role.

Id.

18. The Unnamed Committee Member objects to Request #1 as it is unclear what additional

communications apart from those already requested from the Defendant-Intervenors are

being requested here. On its face, this Request appears to be seeking any communication

related to Proposition 8 in any way. In addition to being objectionable on First Amendment

grounds, this incredibly broad Request is objectionable because of the undue burden it

would impose on the Unnamed Committee Member if required to gather, review, log and/or

produce all responsive materials, the overwhelming majority of which are irrelevant to any

issue in dispute in this case in violation of Fed. R. Civ. P. 26(b)(2)(C)(iii).

Request #2

19. Specifically, the Unnamed Committee Member objects to Request #2 as documents

responsive to this Request have already been produced by Defendants-Intervenors.

As a non-party, the Unnamed Committee Member believes the discovery sought by the

subpoena far exceeds the permissible scope under the Federal and Local Rules. The burden and

expense potentially imposed by the subpoena far outweigh the need for discovery.


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Mr. Ethan Dettmer

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Page 6

Please consider this letter, in addition to the email sent on October 27, 2009, to be efforts to

resolve a discovery dispute without court action. Please advise us whether Plaintiffs willwithdraw or modify the subpoena in light of the Unnamed Committee Members objections.

Sincerely,

BOPP,COLESON &BOSTROM

James Bopp, Jr.


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Exhibit I


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1

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3

4 KRISTIN M. PERRY, SANDRA )B. STIER, PAUL T. KATAMI, )

5 JEFFREY J. ZARRILLO, ))

6 Plaintiffs, ) No. 09-CV-2292) VRW

7 vs. ))

8 ARNOLD SCHWARZENEGGER, in )his official capacity as )

9 Governor of California; )EDMUND G. BROWN, JR. in )

10 his official capacity as )Attorney General of )

11 California; MARK B. )HORTON, in his official )

12 capacity as Director of )the California Department )

13 of Public Health and )State Registrar of Vital )

14 Statistics; LINETTE )SCOTT, in her official )

15 capacity as Deputy )

Director of Health )16 Information & Strategic )Planning for the )

17 California Department of )Public Health; PATRICK )

18 O'CONNELL, in his )official capacity as )

19 Clerk-Recorder for the )County of Alameda; and )

20 DEAN C. LOGAN, in his )official capacity as )

21 Registrar-Recorder/County )

Clerk for the County of )22 Los Angeles, )

)

23 Defendants, ))

24

25


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2

1and

2PROPOSITION & OFFICIAL

3 PROPONENTS DENNISHOLLINGSWORTH, GAIL J.

4 KNIGHT, MARTIN F.GUTIERREZ, HAKSHING

5 WILLIAM TAM, and MARK A.JANSSON; and

6 PROTECTMARRIAGE COM-YESON 8; A PROJECT OF

7 CALIFORNIA RENEWAL,

8 Defendant-Intervenors.

9

10

11

12

13

14

15 DEPOSITION OF MARK A. JANSSON

16 Folsom, California

17 Thursday, December 3, 2009

18

19

20

21

22 REPORTED BY: YVONNE FENNELLY, CSR NO. 5495California Certified Realtime Reporter

23

24 FILE NO.: 35818

25 Pages 1 - 304


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54

1 Q. And who were the four members of the

2 executive committee for ProtectMarriage.com - Yes

3 on 8 during 2008?

4 MS. MOSS: To the extent that the response

5 to that question would require you to reveal the

6 identity of any anonymous members of the executive

7 committee, I would instruct you not to provide

8 that information, but you can provide any

9 publically-available information.

10 THE WITNESS: Ron Prentice, Ned Dolejsi,

11 myself, and John Doe.

12 BY MR. UNO:

13 Q. Was Mr. Pugno a member of the

14 ProtectMarriage.com - Yes on 8 executive committee

15 in 2008?

16 A. He was our legal counsel.

17 Q. He was legal counsel to the executive

18 committee -- sorry.

19 Was Mr. Pugno legal counsel to the

20 executive committee of ProtectMarriage.com - Yes

21 on 8 during 2008?

22 A. Yes.

23 Q. Is there a distinction between Mr. Pugno

24 being legal counsel to the executive committee of

25 ProtectMarriage.com - Yes on 8 during 2008 and his


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304

1 STATE OF CALIFORNIA

2 COUNTY OF CONTRA COSTA

3

4 I, YVONNE FENNELLY, hereby certify that

5 the witness in the foregoing deposition was by me

6 duly affirmed to testify to the truth, the whole

7 truth and nothing but the truth, in the

8 within-entitled cause; that said deposition was

9 taken at the time and place herein named; that the

10 deposition is a true record of the witness's

11 testimony as reported to the best of my ability,

12 by me, a duly Certified Shorthand Reporter and

13 disinterested person, and was thereafter

14 transcribed under my direction into typewriting by

15 computer; that the witness was given an

16 opportunity to read, correct and sign the

17 deposition.

18 I further certify that I am not interested

19 in the outcome of said action nor connected with

20 nor related to any of the parties in said action

21 nor to their respective counsel.

22

23

24 YVONNE FENNELLY, CCRR, CSR No. 5495

25


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Exhibit J


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Edward Dolejsi December 16, 2009Elk Grove, CA

1-800-FOR-DEPOAlderson Reporting Company

Page 1

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 KRISTIN M. PERRY, et al., )

4 Plaintiffs, )

5 and )No. 09-CV-2292 VRW

6 )

7 CITY AND COUNTY OF SAN FRANCISCO,)

8 Plaintiff-Intervenor )

9 vs. )

10 ARNOLD SCHWARZENEGGER, et al. )

11 Defendants, )

12 and )

13 PROPOSITION 8 OFFICIAL PROPONENTS)

14

15 DENNIS HOLLINGSWORTH, et al. )

16 Defendant-Intervenors. )

17 Videotaped Deposition of

18 EDWARD DOLEJSI

19 Wednesday, December 16, 2009

20 --o0o--

21 Reported by: CATHERINE D. LAPLANTE

22 CSR License No. 10140

23

24

25


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Edward Dolejsi December 16, 2009Elk Grove, CA

1-800-FOR-DEPOAlderson Reporting Company

20 (Pages 74 to 77)

Page 74

1 A. I don't recall the exact dates. My own recollection is

2 that there was ProtectMarriage.com prior to California

3 Renewal, et cetera, et cetera, et cetera.

4 Q. Okay. Were you a member or were you on the Executive

5 Committee of ProtectMarriage.com prior to the time it was

6 ProtectMarriage.com, Yes on 8, a Project of California7 Renewal?

8 A. No.

9 Q. Maybe for simplicity sake in this deposition we can

10 just refer to ProtectMarriage.com to mean

11 ProtectMarriage.com, Yes on 8, a Project of California

12 Renewal so we don't have to say the whole title each time;

13 is that fair?

14 A. That's fair as long as we distinguish between the

15 latter description, which was a formal gathering of the

16 committee. I mean, we gathered as the Protect Marriage

17 Committee on Proposition 8. Prior to that time, there was a

18 ProtectMarriage.com of which I was not a participant on the

19 Executive Committee.

20 Q. Okay. So I guess with --

21 A. As long as we are referring to the organization called

22 ProtectMarriage.com, as you've described it, subsequent to

23 Proposition 8, I'm in agreement with describing it that way,

24 ProtectMarriage.com.

25 Q. Okay. Maybe let me ask you just a background question.

Page 75

1 Do you remember when you became -- when you joined the

2 Executive Committee of this organization, when in time?

3 A. Roughly, yes. May or June of 2008.

4 Q. Okay.

5 A. Yeah.

6 Q. So at that point obviously Proposition 8 had been

7 placed on the ballot if it qualified for the ballot?

8 A. I think it was subsequent to its qualifying for the

9 ballot. I think shortly before it qualified for the ballot

10 because the indications were it was going to qualify, and I

11 wanted to be a participant in the Executive Committee at

12 that point.

13 Q. Okay.

14 A. I don't know the exact date.

15 Q. That's fair. Best of your recollection is it was

16 approximately the time it was qualified?

17 A. Late spring of '08.

18 Q. Okay. And obviously before it qualified for the

19 ballot, it couldn't have been known as Yes on 8 because

20 nobody knew it was named 8?

21 A. Correct.

22 Q. How did you become a member, or how did you become a

23 participant in the Executive Committee of

24 ProtectMarriage.com?

25 A. What do you mean by how?

Page 76

1 Q. How did it come to be? Were you invited? Did you call

2 somebody? How did you become a participant?

3 A. I -- hard to recollect whether I was -- I was

4 interested as the initiative moved towards qualification to

5 be more directly involved in the ProtectMarriage.com effort.

6 I think it was at my instigation to ask the others if I7 could attend their meetings at that point and be part of the

8 Executive Committee.

9 Q. Okay.

10 A. I was aware of their ongoing meetings prior to that.

11 Q. Okay. Now, in this litigation what we have learned,

12 just to give you some background of what's been happening in

13 our case, is that there are four members, four identified

14 members of the Executive Committee and one unidentified

15 member of the Executive Committee, if I'm remembering

16 correctly. Yourself, Mr. Hollingsworth --

17 Sorry. That's not correct.

18 MS. MOSS: That's not correct.

19 MR. DETTMER: I'm getting the proponents and the

20 Executive Committee members --

21 Q. Well, let me ask you this: What's your understanding

22 of the -- of who was on the Executive Committee of

23 ProtectMarriage.com during the time you were on it?

24 MS. MOSS: And in answering that, I'm going to instruct

25 you not to reveal the name of the anonymous Executive

Page 77

1 Committee member.

2 THE WITNESS: Understood.

3 It was Ron Prentice, Andy Pugno and Mark Jansson, and

4 Andy Pugno was the General Counsel.

5 Q. BY MR. DETTMER: Okay. And it was your understanding

6 that he wasn't a part of the Executive Committee?

7 A. Correct. He was our General Counsel.

8 Q. And then -- an individual who hasn't been publicly

9 identified, as far as you know?

10 A. That's correct.

11 Q. So four members plus Mr. Pugno as General Counsel?

12 A. Correct.

13 Q. Okay.

14 A. Four participants.

15 Q. Fair enough.

16 A. Again, I don't think we deliberated membership

17 criteria.

18 Q. And I think you're also aware that there are official

19 proponents of Proposition 8; is that correct?

20 A. It is.

21 Q. And who do you understand those people to be?

22 A. I should probably know them all intimately. I don't.

23 Q. Okay.

24 A. Dennis Hollingsworth, a gentleman by the name of

25 Mr. Tam. I can't remember whether -- I think Gayle Knight


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Exhibit K


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Page 1



---oOo---

KRISTIN M. PERRY, et al.,

Plaintiffs,

vs. Case No. 09-CV-2292 VRW

ARNOLD SCHWARZENEGGER,et al.,

Defendants.

_________________________________/

Deposition of

RONALD PRENTICE

Volume I

Thursday, December 17, 2009

REPORTED BY: LESLIE CASTRO, CSR #8876

BONNIE L. WAGNER & ASSOCIATESCourt Reporting Services

41 Sutter Street, Suite 1605San Francisco, California 94104

(415) 982-4849


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(415) 982-4849BONNIE L. WAGNER & ASSOCIATES

14 (Pages 50 to 53)

Page 50

110:01:57 compensation; is that correct?

210:01:58 A. Correct. I believe that I operate as its

310:02:02 executive director without compensation.

410:02:06 Q. And what are your responsibilities as

510:02:14 executive director for California Renewal?

610:02:19 A. Prior to -- there has been no activity by

710:02:27 California Renewal leading up to the

810:02:36 ProtectMarriage.com-Yes on 8 campaign.

910:02:41 Q. I'm not sure I understand what you just said

1010:02:43 so let me try to ask. You say there's been no activity

1110:02:49 by California Renewal leading up to the Yes on 8

1210:02:55 campaign. I'm trying to understand the connection

1310:03:00 between California Renewal and ProtectMarriage.

1410:03:04 Is there one?

1510:03:06 A. When you say "ProtectMarriage," are you

1610:03:08 referring to the ProtectMarriage.com-Yes on 8 campaign?

1710:03:13 Q. Yes.

1810:03:14 A. The sponsoring entity was the (c)(4)

1910:03:17 California Renewal.2010:03:19 Q. The sponsoring entity of the initiative

2110:03:24 measure?

2210:03:24 A. Yes, of ProtectMarriage.com-Yes on 8 campaign

2310:03:30 committee.

2410:03:40 Q. So just to be clear: California Renewal was

2510:03:43 the sponsor of --

Page 51

110:03:44 (Mr. Pugno enters the room.)

210:03:47 MS. STEWART: Q -- the entity, the Yes on 8

310:03:51 ProtectMarriage entity or are you saying it was the

410:03:54 sponsor of the initiative itself, the ballot measure.

510:03:59 A. To the best of my knowledge, the way that I

610:04:01 would frame it would be that the initiative was put

710:04:20 forth by the campaign committee called

810:04:24 ProtectMarriage.com-Yes on 8.

910:04:32 Q. Okay.

1010:04:32 So ProtectMarriage.com-Yes on 8 actually was

1110:04:36 the official proponent or an official proponent of

1210:04:41 Proposition 8; is that correct?

1310:04:44 MS. MOSS: Object to the extent it calls for a

1410:04:46 legal conclusion.

1510:04:48 MS. STEWART: I'm asking for his understanding

1610:04:49 counsel.

1710:04:52 THE WITNESS: I believe that there was a campaign

1810:04:56 committee formed and there were individual proponents.

1910:05:01 MS. STEWART: Q But just from a lay person's

2010:05:03 understanding, how was ProtectMarriage.com, the entity,

2110:05:07 involved in that process?

2210:05:13 A. ProtectMarriage.com-Yes on 8, to the best of

2310:05:15 my understanding, is primarily formed ballot measure


2510:05:19 Q. And who formed that ballot measure committee?

Page 52

110:05:23 A. It was created by an ad hoc executive


310:05:27 Q. And earlier you said something about

410:05:32 California Renewal being the sponsoring -- I can't

510:05:37 remember the language you used -- but member or

610:05:39 sponsoring -- in some way sponsoring. And I was unclear

710:05:48 whether you were saying they sponsored the formation of

810:05:52 ProtectMarriage.com or something else.

910:05:55 Can you explain?

1010:05:57 A. Well, I'm not sure that I can explain it much

1110:05:59 better than I have because of my lack of legal

1210:06:02 intellect. And it would have to do with that there is a

1310:06:13 board of directors, too.

1410:06:18 California Renewal who gave authority to an ad

1510:06:24 hoc executive committee to move forward with a

1610:06:28 primarily-formed ballot measure called

1710:06:34 ProtectMarriage.com-Yes on 8.

1810:06:40 Q. I would say that's not an intellect issue, I

1910:06:45 think it was very clear.2010:06:46 A. Thank-you. Let's just hope it's accurate.

2110:06:50 MS. MOSS: Can we take a bathroom break?

2210:06:54 THE VIDEOGRAPHER: Off record at 10:08.

2310:09:30 (Brief break.)

2410:09:30 (Ms. Piepmeier is not present.)

2510:14:51 THE VIDEOGRAPHER: Back on the record at 10:14.

Page 53

110:15:01 MS. STEWART: Q Mr. Prentice, when you were

210:15:03 employed by Focus on the Family, what was the

310:15:06 approximate annual budget of that organization?

410:15:11 A. Approximately -- well, it varied within those

510:15:13 ten years. Anywhere from 125 million to 145 million.

610:15:35 Q. Earlier you mentioned that the board of

710:15:36 directors of California Renewal gave authority to an ad

810:15:39 hoc committee to move forward to create

910:15:42 ProtectMarriage.com or what became ProtectMarriage.com.

1010:15:49 A. Became the ballot measure committee.

1110:15:56