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 372 Filed 01/08/10 Page 1 of 6
United States District Court

For the Northern District of California

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Plaintiffs and plaintiff-intervenor City and County of

San Francisco (collectively “plaintiffs”) seek an order compelling

production of non-privileged documents responsive to document 

requests 1, 6 and 8. Doc #325 at 8. Defendant-intervenors, the

official proponents of Proposition 8 (“proponents”) oppose

production, arguing all non-privileged responsive documents have

been produced and that additional production at this time would not

be practical. Doc #314. Underlying the dispute is the scope of

proponents’ First Amendment privilege and the application of that

privilege to the documents in proponents’ possession. The court

heard the matter on January 6, 2010. This written order

memorializes the oral order made at the hearing.

I

Proponents’ First Amendment privilege protects “private,

internal campaign communications concerning the formulation of

strategy and messages.” Perry v Hollingsworth, 09-17241 Slip Op at

36 n12 (9th Cir January 4, 2010) (emphasis in original). The

privilege protects “communications among the core group of persons

engaged in the formulation of campaign strategy and messages.” Id

(emphasis in original). The Ninth Circuit left it to this court

“to determine the persons who logically should be included” in the

core group. Id.

At the January 6 hearing, the court heard argument from

counsel concerning the identities of individuals within the core

group. Proponents argued the court should consider as part of the

core group organizations other than the official campaign in

support of Proposition 8, Yes on 8 and ProtectMarriage.com. But

Case 3:09-cv-02292-JW Document 372 Filed 01/08/10 Page 2 of 6
United States District Court

For the Northern District of California

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proponents have never asserted a First Amendment privilege over

communications to other organizations. Indeed, proponents’

November 6, 2009 in camera filing, which was intended to represent

(by providing the Court with a representative sample) the universe

of documents over which proponents claim a First Amendment

privilege, does not identify other organizations’ documents as part

of proponents’ privilege claim. Doc #251. To the contrary, the

declaration accompanying the in camera submission refers only to

the management structure of the Yes on 8 campaign. Accordingly,

the court finds that proponents have only claimed a First Amendment

privilege over communications among members of the core group of

Yes on 8 and ProtectMarriage.com.

Even if the Court were to conclude that the First

Amendment privilege had been properly preserved as to the

communication among the members of core groups other than the Yes

on 8 and ProtectMarriage.com campaign, proponents have failed to

meet their burden of proving that the privilege applies to any

documents in proponents’ possession, custody or control. There is

no evidence before the Court regarding any other campaign

organization, let alone the existence of a core group within such

an organization. There is also no evidence before the Court that

any of the documents at issue are private internal communications

of such a core group regarding formulation of strategy and

messages. 

Counsel did not agree on a core group of Yes on 8 and

ProtectMarriage.com at the January 6 hearing, and in the absence of

agreement, the court looked to a declaration by Ron Prentice

submitted by proponents under seal on November 6, 2009. Doc #251.

Case 3:09-cv-02292-JW Document 372 Filed 01/08/10 Page 3 of 6
United States District Court

For the Northern District of California

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The Prentice declaration explains the structure of the “Yes on 8"

campaign and identifies by name the individuals with decisionmaking authority over campaign strategy and messaging. Proponents

admitted the individuals in the Prentice declaration form at least

a part of the core group but sought an additional 24 hours to

determine whether additional individuals should also be included. 

The court granted the request and ordered proponents to supplement

their filing not later than January 7, 2010 at 4 PM. Proponents

filed a second Declaration of Mr. Prentice (the “Second Prentice

Declaration”) which offers addition persons that are claimed to be

in the core group of ProtectMarriage.com. Doc #364. Plaintiffs

submitted objections to the Second Prentice Declaration on January

8, 2010. Doc #367. Having reviewed both of the Prentice

declarations and plaintiffs’ opposition, the court finds that the

court group consists only of the following individuals:

Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, HakShing William Tam and Mark A Jansson (The official proponents

of Proposition 8); Ron Prentice, Mark A Jansson, Ned Dolejsi

and Doug Swardstrom (the members of ProtectMarriage.com’s

executive committee); David Bauer (the treasurer of

ProtectMarriage.com); Andrew Pugno, Joe Infranco and Glen Lavy 

(ProtectMarriage.com’s attorneys); Mike Spence and Gary

Lawrence (individuals who provided significant advice and

assistance to the campaign); Sonja Eddings Brown, Chip White

and Jennifer Kerns (spokespersons for ProtectMarriage.com);

Meg Waters and the individuals listed in ¶6(i)-(iii) and

¶6(v)-(vii) of the Second Prentice Declaration (volunteers who

had significant roles in formulating strategy and messaging);

employees of Schubert Flint Public Affairs, Lawrence Research,

Sterling Corporation, Bieber Communications, Candidates

Outdoor Graphics, The Monaco Group, Infusion PR, Connell

Dontatelli, JRM Enterprises and K Street Communications

(consulting firms who had significant input on strategic

decisions); and assistants to the named individuals acting on

the named individuals’ behalf.

\\

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Case 3:09-cv-02292-JW Document 372 Filed 01/08/10 Page 4 of 6
United States District Court

For the Northern District of California

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Communications to anyone outside the core group are not

privileged under the First Amendment. While the First Amendment

privilege only protects internal communications relating to

strategy or messaging, proponents will not be ordered at this

juncture to produce any internal communications on any subject. 

Nevertheless, proponents must revise their privilege log to

include, as protected by the First Amendment privilege, all 

documents consisting of communications between or among members of

the core group. The revised privilege log shall be served and

filed not later than January 24, 2010.

II

Plaintiffs seek an order directing proponents to produce

all non-privileged documents responsive to document requests 1, 6

and 8. Doc #325 at 8. To the extent requests 1, 6 and 8 seek

documents that contain, refer or relate to arguments for or against

Proposition 8, the requests seek relevant discovery as defined in

FRCP 26(b)(1). See Doc #252 at 3; Perry, 09-17241 Slip op at 34. 

Because the scope of proponents’ First Amendment privilege has been

defined, proponents are now able to identify non-privileged

documents and produce them to plaintiffs pursuant to the protective

order, Doc #360. Proponents are therefore ordered to produce all

documents responsive to requests 1, 6 and 8 that contain, refer or

relate to any arguments for or against Proposition 8 other than

communications solely among the core group as defined above. They

shall begin production of the documents on a rolling basis not

later than Sunday, January 10, 2010 at 12 PM. Production shall

conclude not later than Sunday, January 17, 2010 at 12 PM. The

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United States District Court

For the Northern District of California

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short production schedule is necessary in light of the trial

scheduled to begin on January 11, 2010. 

IT IS SO ORDERED.

 

JOSEPH C SPERO

United States Magistrate Judge

Case 3:09-cv-02292-JW Document 372 Filed 01/08/10 Page 6 of 6