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Perry v. Schwarzenegger

November 11, 2009

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 CLERK-RECORDER 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



The opinion of the court was delivered by: Vaughn R. Walker, Chief Judge.

ORDER

The court has received defendant-intervenors' ("proponents") in camera submission containing a sample of documents potentially responsive to plaintiffs' revised eighth document request. Doc # 251. Proponents assert that the documents are protected by the qualified First Amendment privilege and that in any event the documents are not relevant. Id.; see also Doc # 187 (proponents' motion for a protective order); Doc # 220 (proponents' motion to stay discovery).

The court denied proponents' blanket assertion of privilege, Doc # 214, but offered to review a sample of the documents at issue in camera to determine if the privilege might apply to some of proponents' documents, Doc # 246, Nov 2 Hrg Tr at 42-43. While plaintiffs have not seen the documents, they are in possession of proponents' privilege log, Doc # 250-1, which identifies the submitted documents by number and provides a simple description of the documents.

The court has reviewed proponents' in camera submission and finds that while the qualified First Amendment privilege does not provide the documents much, if any, protection against disclosure, many of the documents submitted by proponents are simply not responsive to plaintiffs' discovery request.

I.

The documents submitted by proponents are at most subject to a limited application of the qualified First Amendment privilege. Proponents have argued vigorously that the privilege should protect all campaign communications as well as identities of all individuals whose association with the campaign has not yet been made public. Doc187, 220. Proponents have not however identified a way in which the qualified privilege could protect the disclosure of campaign communications or the identities of high ranking members of the campaign. See Doc # 187 at 14-19 (citing National Ass'n for the A of C P v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ( "NAACP" ) and its progeny, which protect only the identity of rankand-file organization members, along with McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 351, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), which protects "individuals acting independently and using only their own modest resources."). If the qualified privilege identified by proponents protects anything, it is the identities of rank-and-file volunteers and similarly situated individuals. Plaintiffs have indicated that they do not oppose redaction of these names. Doc # 250 at 2 n1.

II.

Plaintiffs' eighth document request is likely to lead to the discovery of admissible evidence to the extent the evidence relates to messages or themes conveyed to California voters or is otherwise likely to lead to this relevant information. See Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 463-463, 102 S.Ct. 3187, 73 L.Ed.2d 896 (relying in part on messages relayed to voters to hold that a busing initiative was "directed solely at desegregative busing"); see also Robert L v. Superior Court, 30 Cal.4th 894, 905, 135 Cal.Rptr.2d 30, 69 P.3d 951 (2003) (relying on "materials that were before the voters" to interpret a California initiative and rejecting "evidence of the drafters' intent that was not presented to the voters").

Here, communications discussing campaign messaging or advertising strategy, including targeted messaging, are generally responsive; communications regarding fundraising strategy, polling information or hiring decisions are generally not responsive, unless the communications deal with themes or messages conveyed to voters in more than a tangential way. To assist the parties in proceeding with discovery, the court has analyzed each of the sixty documents submitted by proponents and determined for the reasons explained below that only the following twenty-one are responsive to plaintiffs' discovery request: 3, 4, 6, 7, 9, 11, 12, 17, 27, 28, 29, 30, 48, 49, 50, 51, 53, 55, 56, 58 and 60. These documents discuss messages or themes conveyed to voters through advertising or direct messaging. The remaining documents are either not responsive to plaintiffs' request or are so attenuated from the themes or messages conveyed to voters that they are, for practical purposes, not responsive.

A.

Documents 3, 4, 6, 7, 9, 11, 12, 17, 27, 28, 29, 30, 48, 49, 50, 51, 53, 55, 56, 58 and 60 are responsive because they relate to the messages or themes the campaign attempted to or did convey to voters. These documents deal directly with advertising or messaging strategy and themes.

• Doc 3 discusses talking points for a meeting with a newspaper editorial board.

• Doc 4 discusses edits to a television advertisement.

• Doc 6 discusses edits to flyers targeted to a group of voters.

• Doc 7 contains emails and attachments dealing with arguments to be presented to voters in some form.

• Doc 9 discusses a campaign targeted to certain voters.

• Doc 11 discusses messages conveyed during the campaign's grassroots outreach.

• Doc 12 analyzes materials for the ballot pamphlet.

• Doc 17 discusses voter reaction to a theme in campaign advertising.

• Doc 27 contains line edits of the ballot arguments.

• Doc 28 is a meeting agenda outlining the campaign's ...


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