United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, SANDRA B STIER,

PAUL T 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 BROWN JR, in

his official capacity as attorney

general of California; MARK B

HORTON, in his official capacity

as director of the California

Department of Public Health and

state registrar of vital

statistics; LINETTE SCOTT, in her

official capacity as deputy

director of health information &

strategic planning for the

California Department of Public

Health; PATRICK O’CONNELL, in his

official capacity as clerkrecorder of the County of

Alameda; and DEAN C LOGAN, in his

official capacity as registrarrecorder/county clerk for the

County of Los Angeles, 

Defendants,

DENNIS HOLLINGSWORTH, GAIL J

KNIGHT, MARTIN F GUTIERREZ,

HAKSHING WILLIAM TAM, MARK A

JANSSON and PROTECTMARRIAGE.COM –

YES ON 8, A PROJECT OF

CALIOFORNIA RENEWAL, as official

proponents of Proposition 8,

Defendant-Intervenors. /

No C 09-2292 VRW

ORDER

Case 3:09-cv-02292-JW Document 641 Filed 04/25/10 Page 1 of 3
United States District Court

For the Northern District of California

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On March 22, 2010, the court upheld Magistrate Judge

Spero’s March 5 discovery order and ordered nonparties Equality

California and the ACLU (the “No on 8 groups”), along with

Californians Against Eliminating Basic Rights, to produce all

responsive non-privileged documents on a rolling basis to conclude

not later than March 31, 2010. Doc #623. The No on 8 groups

appealed the court’s orders, which were stayed until the Ninth

Circuit dismissed the No on 8 groups’ appeal for lack of

jurisdiction. Perry v Schwarzenegger, No 10-15649 Doc #14 (9th Cir

April 12, 2010). Proponents now ask the court to hold the No on 8

groups in contempt, as they have failed to produce documents as

ordered in the March 5 and March 22 orders. Doc #632.

The No on 8 groups assert that they are withholding

documents because they believe the First Amendment privilege should

apply to communications between or among all No on 8 core group

members regardless of organizational affiliation. See Doc #639 at

4. The No on 8 groups’ current position stems from the Ninth

Circuit’s observation that the First Amendment privilege applies to

communications among individuals who have formed an associational

bond regardless of organizational membership. Perry, No 10-15649

Doc #14 at 9. The No on 8 groups have not however pointed to any

evidence in the record to support a finding that communications

between the No on 8 groups were sufficiently private to be deemed

privileged under the First Amendment. See Doc #639 at 4 (arguing

that the No on 8 groups’ evidentiary submissions support an

expanded First Amendment privilege but failing to refer to

particular evidence in the record supporting this position). The

No on 8 groups have thus not shown that any amendment to the

Case 3:09-cv-02292-JW Document 641 Filed 04/25/10 Page 2 of 3
United States District Court

For the Northern District of California

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court’s previous orders is appropriate. 

In order for the No on 8 groups to be held in contempt,

the court must find by clear and convincing evidence that (1) the

No on 8 groups violated the March 5 and March 22 orders; (2) beyond 

substantial compliance; and (3) the violation was not based on a

good faith and reasonable interpretation of the order. See In re

Dual-Deck Video Cassette Recorder Antitrust Litig, 10 F3d 693, 695

(9th Cir 1993). It appears from the record before the court that

the No on 8 groups have not in any way complied with the court’s

orders. See Doc #639 (explaining that the No on 8 groups do not

intend to comply with the court’s orders as currently formulated).

The No on 8 groups are therefore ORDERED to SHOW CAUSE in writing

by not later than April 27, 2010 at 5 PM PDT and at a hearing

before the undersigned on April 28, 2010 at 10:30 AM PDT why they

should not be held in contempt for failing to produce documents as

ordered in the March 5 and March 22 orders.

The declaration of Geoff Kors estimates that production

of Equality California’s documents could cost $20,000. Doc #609

¶10. If the court determines that the No on 8 groups are in 

contempt of its orders, the court is considering imposing sanctions

to coerce compliance in the amount of $2,000 per day per group, or

one-tenth the cost of production, for each day that the No on 8

groups fail to comply with the court’s orders. 

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

Case 3:09-cv-02292-JW Document 641 Filed 04/25/10 Page 3 of 3