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Case: 09-17241 11/23/2009 ID: 7139901 DktEntry: 19-1 Page: 1 of 42

Nos. 09-17241 & 09-17551



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________
KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENEGGER, et al.,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTS

DENNIS HOLLINGSWORTH, et al.,







Defendant-Intervenors-Appellants.


_________________________

On Appeal From The United States District Court

For The Northern District Of California

No. CV-09-02292 VRW

Honorable Vaughn R. Walker

____________________________________________________

APPELLEES’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION FOR

____________________________________________________

STAY

THEODORE J. BOUTROUS, JR.
REBECCA JUSTICE LAZARUS
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804




THEODORE B. OLSON
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500

Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo






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TABLE OF CONTENTS

Page

INTRODUCTION AND SUMMARY OF ARGUMENT........................................1

FACTUAL AND PROCEDURAL BACKGROUND ..............................................5

ARGUMENT ...........................................................................................................12

I.

THis Court Should Dismiss These Appeals Because It Lacks
Jurisdiction To Review The District Court’s Interlocutory
Discovery Orders.................................................................................12

A.

B.

The Issue Conclusively Resolved By The District Court’s
Orders Is Inseparable From The Merits Of The Case...............14

Proponents’ Claim Of First Amendment Privilege Is
Readily Distinguished From Those Privilege Rulings
This Court Has Treated As Collateral Orders...........................18

II.

THIS COURT SHOULD DENY PROPONENTS’ MOTION FOR A STAY
PENDING APPEAL. ................................................................................21

A.

B.

Proponents Have Not Satisfied The Prerequisites To A
Stay Established By Fed. R. App. P. 8. ....................................21

Proponents Do Not Satisfy The Requirements For A Stay
Pending Appeal.........................................................................25

1.

2.

3.

Proponents Have Not Shown A Likelihood Of
Success On The Merits...................................................25

Proponents Have Not Failed To Demonstrate That
They Will Be Irreparably Harmed By Disclosure
Under The Protective Order Contemplated By The
District Court ..................................................................33

The Balance Of Hardships Weighs In Favor Of
Plaintiffs..........................................................................34

CONCLUSION........................................................................................................35



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TABLE OF AUTHORITIES

Cases

Page(s)

Adolph Coors Co. v. Wallace, 570 F. Supp. 202 (N.D. Cal. 1983).........................16

Amoco Production Co. v. Gambell, 480 U.S. 531 (1987) .......................................37

Baker v. Adams County/Ohio Valley School Bd., 310 F.3d 927 (6th Cir.

2002) ...................................................................................................................26

Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981)..............................28

City of Los Angeles v. County of Kern, 462 F. Supp. 2d 1105 (C.D. Cal.

2006) ...................................................................................................................34

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)...........................13, 20

Cumberland Tel. & Tel. Co. v. Louisiana Public Service Commission,

260 U.S. 212 (1922)......................................................................................24, 25

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) ........................13

Dole v. Service Employees Union, AFL-CIO, 950 F.2d 1456 (9th Cir.

1991) ........................................................................................................... passim

In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ......................................................5

In re Napster, Inc. Copyright Litig., 479 F.3d 1078 (9th Cir. 2007).......................20

Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984).................................................35

McLaughlin v. Service Employees Union, AFL-CIO, Local 280, 880 F.2d

170 (9th Cir. 1989)..............................................................................................30

Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) .................................3

Mohawk Indus., Inc. v. Carpenter, No. 08-678 (argued Oct. 5, 2009)....................21

NAACP v. Alabama, 357 U.S. 449 (1958).........................................................30, 31

Palmer v. Valdez, 560 F.3d 965 (9th Cir. 2009)......................................................28

S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003) .................34, 35


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S.E.C. v. Dunlap, 253 F.3d 768 (4th Cir. 2001) ......................................................27

SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970) ...............................................33

Sell v. United States, 539 U.S. 166 (2003) ........................................................14, 19

Truckstop.net, LLC v. Sprint Corp., 547 F.3d 1065 (9th Cir. 2008) .................13, 14

United States v. Fernandez, 231 F.3d 1240 (9th Cir. 2000)....................................13

United States v. Philip Morris Inc., 314 F.3d 612 (D.C. Cir. 2003) .......................37

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988).......................................3, 15, 17

Washington v. Davis, 426 U.S. 229 (1976) .......................................................33, 34

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ..............................18, 33

Will v. Hallock, 546 U.S. 345 (2006).......................................................................21

Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) .............................27, 37

Statutes

N.D. Cal. L. R. 7-1(a) ..............................................................................................24

N.D. Cal. L. R. 7-2(b) ..............................................................................................24

Rules

Fed. R. Civ. P. 26(b)(1)............................................................................................35

Fed. R. Evid. 801(d).................................................................................................36

Other Authorities

16A Wright, Miller, et al., Federal Practice and Procedure § 3954 (3d

ed.).......................................................................................................................25

Am. Ass’n of Political Consultants Proposition 8 Case Study, 2009 Pollie

Awards and Conference (Mar. 28. 2009), at
http://www.youtube.com/watch?v= ngbAPVVPD5k ..........................................18



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INTRODUCTION AND SUMMARY OF ARGUMENT

This Court should deny Proponents’ emergency motion for a stay pending

appeal because the Court lacks jurisdiction over these appeals and, in any event,

the Proponents fail to meet the standards for obtaining a stay.

The discovery orders at issue are neither final nor collateral orders, but

rather purely interlocutory and not amenable to appellate jurisdiction. Indeed, Pro-

ponents’ stay motion and the notices of appeal underlying it, are a transparent ef-

fort to obtain interlocutory review of the district court’s denial of their 100-page

motion for summary judgment. Central to Proponents’ failed dispositive motion

was their contention that Proposition 8 (“Prop 8”)—notwithstanding the fact that it

stripped gay men and lesbians in California of their fundamental constitutional

right to marry that had been recognized by the State’s highest court—was subject

at most to rational basis review and that, under their version of that review, the ac-

tual motivations that led to enactment of a law are immaterial to the constitutional

analysis. Prop 8 can survive, Proponents argued, so long as they can proffer any

rational basis that conceivably could have been adopted by the bare majority of

Californians that voted to strip their gay and lesbian neighbors of their right to

marry.

That, indisputably, is a merits contention and the district court provisionally re-

jected it when it denied Proponents’ motion for summary judgment. See SRR



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107.1 The district court found that precedent concerning the level of scrutiny to be

applied was “mixed” and “requires a complete factual record for decision making.”

SR 101. The district court also rejected Proponents’ contention that, under rational

basis review, the question of the actual motivation of the electorate is legally ir-

relevant, finding it “rest[s] on the assumption that the Court accepts that Proposi-

tion 8 is supported by legitimate state interests.” SRR 107. The district court con-

cluded that the question whether Proposition 8 was enacted with discriminatory in-

tent required further factual development and thus was inappropriate for summary

judgment. Id.

Their motion denied, Proponents did not ask the district court to certify its

ruling for interlocutory review under 28 U.S.C. § 1292(b). Instead, they have at-

tempted to smuggle their merits contention into this Court under the guise of a

challenge to an assertedly “collateral” discovery order. To do that, Proponents

have sought to convert a simple dispute about whether Plaintiffs’ discovery is “rea-

sonably calculated to lead to the discovery of admissible evidence,” Fed. R. Civ.

P. 26(b)(1), into a claim of First Amendment privilege and to obtain a stay on that

basis. This effort fails.

Proponents’ conception of the First Amendment privilege against discovery

has two components: It begins with the truism that discovery of a person’s non-

1 “SRR” refers to Appellees’ Supplemental Relevant Parts Of The Record filed

contemporaneously with this Opposition. “Doc” refers to entries in the district
court PACER docket.


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public communications inevitably may in some sense “chill” that person’s future

nonpublic communications as she adjusts her speech to accord with the reality that

even her nonpublic communications might one day be revealed in legal proceed-

ings. Proponents then argue that this “chilling effect” on speech imposed by ordi-

nary civil discovery violates the First Amendment when the evidence sought to be

discovered is legally irrelevant. On Proponents’ view, the First Amendment for-

bids any discovery of a person’s nonpublic communications in such circumstances.

The First Amendment’s qualified privilege against discovery is not nearly as

sweeping and inflexible as Proponents suggest. See Dole v. Service Employees

Union, AFL-CIO, 950 F.2d 1456 (9th Cir. 1991). But even on Proponents’ telling

their claim of First Amendment privilege turns on their assertion that the evidence

Plaintiffs seek is legally irrelevant to their claims for relief. See Stay Mot. 14.

The collateral order doctrine permits interlocutory review only of those is-

sues “completely separate from the merits of the action.” Midland Asphalt Corp.

v. United States, 489 U.S. 794, 800 (1989). But as the district court recognized,

the relevance inquiry Proponents ask this Court to undertake “is necessarily en-

meshed in the merits” of Plaintiffs’ constitutional challenge. RR 16. And inter-

locutory appeals that ask the reviewing court to “determine whether the pieces of

evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of

action and to any potential defenses to the action” are not authorized by the collat-



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eral order doctrine. Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988). This

Court accordingly lacks jurisdiction over Proponents’ appeals.

Moreover, Proponents’ motion fails to demonstrate that they are entitled to a

stay pending appeal. As an initial matter, Proponents failed to comply with Fed. R.

App. P. 8. Proponents sought relief from the district court’s November 11 privi-

lege ruling without “mov[ing] first in the district court” or otherwise demonstrating

that “moving first in the district court would be impractical.” Fed. R. App. P.

8(a)(1), (2)(A)(i).

Finally, Proponents fail to meet the requirements for a stay pending appeal.

Proponents are unlikely to prevail on their novel and sweeping claim of privilege.

They have misinterpreted the privilege’s meaning and scope. Their political con-

sultants have publicly discussed—freely and at length—their strategy to persuade

the electorate to endorse Prop. 8. The district court demonstrated great sensitivity

to the Proponents’ First Amendment claims, commencing a document-by-

document analysis to assess these claims. Finally, they have failed to demonstrate

that cooperation with discovery under the “attorney’s eyes only” protective order

contemplated by the district court will damage their associational interests. And a

stay pending appeal would be particularly inappropriate in this case because it will

hamper significantly the parties’ ability to build a factual record for the trial the

district court has scheduled for January 2010. Plaintiffs are to begin deposing the

Proponents on December 1, and if a stay is granted, Plaintiffs will be put to a


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choice either of going forward with those depositions without having had the op-

portunity to review the documents at issue here and with Proponents’ counsel in-

structing the Proponents not to answer any questions about the strategy of the Yes

on 8 campaign, or seeking a delay in the trial and prolonging the suffering of the

Plaintiffs, who are irreparably harmed each day they are prohibited from marrying.

That tips the balance of hardships decisively in favor of Plaintiffs and precludes a

stay pending appeal.

FACTUAL AND PROCEDURAL BACKGROUND



Plaintiffs are gay and lesbian residents of California who are involved in

long-term, serious relationships with individuals of the same sex. They desire to

marry in order to demonstrate publicly their commitment to their partner and to ob-

tain all the benefits that would come with the official recognition of their family

relationship. Plaintiffs were denied marriage licenses, however, solely on the

ground that they were seeking to marry an individual of the same sex.



In response, Plaintiffs filed suit in the Northern District of California chal-

lenging the constitutionality of Prop. 8, a ballot initiative that was narrowly passed

by California voters in November 2008. SRR 130-149. Prop. 8—which provides

that “[o]nly marriage between a man and a woman is valid or recognized in

California”—was a direct response to a California Supreme Court decision that

held that the state constitution protected the right of gay and lesbian individuals to



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marry. In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Plaintiffs contend that

Prop. 8 violates the Due Process and Equal Protection Clauses of the United States

Constitution because it impermissibly stripped gay and lesbian individuals of their

right to marry and relegated them to the inherently unequal institution of domestic

partnership. SRR 130-149. The State’s chief law enforcement officer, the Attor-

ney General, has conceded that Prop. 8 violates the U.S. Constitution. Doc #39.

Proponents are the official proponents on Prop. 8. Though none of their own

rights are directly implicated by Prop. 8, they injected themselves into this case by

moving to intervene as defendants. Doc. #8.

Because Plaintiffs are denied their constitutional right to marry each day that

Prop. 8 remains on the books, they moved for a preliminary injunction immedi-

ately after filing their complaint. The district court denied that motion but, because

it concluded further factual development is necessary to determine the constitu-

tionality of Prop. 8, ordered expedited proceedings and a prompt trial. One of the

factual issues that the district court identified as relevant to its constitutional in-

quiry is “whether Prop 8 was passed with a discriminatory intent,” which, the court

explained, “may require the record to establish . . . the voters’ motivation or moti-

vations for supporting Prop 8.” SRR 137-138. The district court ordered an expe-

dited fourteen week period of discovery closing on November 30, 2009, with a trial

on the merits to commence on January 11, 2010. SRR 129.

In accordance with the district court’s order, Plaintiffs immediately pro-



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pounded discovery intended to investigate, inter alia, whether voters were moved

to support Prop. 8 by impermissible considerations such as moral disapproval of

gay and lesbian relationships or discriminatory animus toward gay and lesbian in-

dividuals. In particular, Plaintiffs sought to learn whether Proponents and their

campaign strategists sought to activate impermissible and discriminatory consid-

erations in voters to strip gay and lesbian Californians of their right to marry. To

learn how Proponents and their public-relations consultants sought to persuade

people to vote for Prop 8, Plaintiffs requested all versions of Proponents’ various

communications with members of the electorate between Proponents and third par-

ties regarding Prop. 8. RR 265-66. To forestall any dispute over definitions in

Plaintiffs’ document request, Plaintiffs also requested communications relating to

Prop. 8 between Proponents and any third party. RR 266.

Proponents have resisted the district court’s effort to build a factual record

on Prop. 8 from the outset of the litigation, urging that Plaintiffs’ claims were ab-

solutely foreclosed by precedent. Doc #139 at 9-10; see also Doc #172-1 at 30

(“there are no genuine issues of material fact that must be resolved at trial”; Propo-

nents “are entitled to judgment as a matter of law”). In response to Plaintiffs’

document requests, Proponents sought a protective order. Doc #175. But the pro-

tective order they sought was not one that would protect merely the confidentiality

of their documents; Plaintiffs had already offered to enter into such an order. Doc

#191-1 at 3. Rather, Proponents sought an order prohibiting any discovery into


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documents or communications concerning Prop. 8, except to the extent the Propo-

nents themselves had chosen to make a communication available to the general

public. They contended that (1) any and all communications between the Propo-

nents and any subset of the electorate (e.g., registered Republicans), (2) any and all

communications between Proponents and their campaign strategists, and, (3) in-

deed, any document that even identified the leadership of the Prop. 8 campaign
was privileged from any disclosure by the First Amendment.2

On October 1, 2009, the district court granted the protective order in part and

denied it in part. The court held that Plaintiffs’ request for all communications re-

lating to Prop. 8 between the Proponents and any third party was “overly broad”

and directed Plaintiffs to “revise th[at] request and tailor it to relevant factual is-

sues.” RR 40. But the district court rejected Proponents’ contention that the First

Amendment precluded any discovery into the Proponents’ nonpublic communica-

tions. The court explained that the “First Amendment qualified privilege propo-

nents seek to invoke, unlike the attorney-client privilege, . . . is not an absolute bar

against disclosure.” RR 28. The Proponents’ blanket assertion of privilege must

2 Proponents later refined their position, agreeing to produce certain mass com-

munications to potential voters but only to the extent the recipients of such com-
munications had not previously formed an “associational bond” with the Propo-
nents. RR 123 (22). Proponents most recent and description of the scope of the
privilege they assert delineates ten categories and 23 sub-categories including
“[d]ocuments that reveal the names or titles of ad hoc executive committee mem-
bers of Protectmarriage.com,” “[d]ocuments that reveal campaign strategy,” and
“[n]onpublic documents which relate to public communications with third parties.”
RR 46-48.


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fail, the court reasoned, because “the First Amendment qualified privilege requires

a balancing of the plaintiffs’ need for the information sought against proponents’

constitutional interests in claiming the privilege.” RR 33. Though it denied Propo-

nents’ blanket claim of privilege, the court offered “to assist the parties in fashion-

ing a protective order where necessary to ensure that disclosures through the dis-

covery process do not result in adverse effects on the parties or entities or individ-

ual not parties to this litigation.” RR 39-40.

Proponents noticed an interlocutory appeal of the district court’s October 1

discovery order. Doc # 222 (No. 09-17241). On October 20, 2009, this Court or-

dered Proponents to show cause why that interlocutory appeal of a discovery order

“should not be dismissed for lack of jurisdiction” because “this court generally

lacks jurisdiction to review discovery orders.” Order at 1, 2 (Oct. 20, 2009).

When Proponents noticed their first interlocutory appeal, they also moved

the district court to stay its October 1 discovery order pending appeal. On October

23, 2009, the district court denied a stay. In addition to finding that a stay was in-

appropriate because Proponents “are unlikely to succeed on the merits” of their

First Amendment privilege claim, the district court declined to stay its discovery

order because it concluded that “the court of appeals lacks jurisdiction over the ap-

peal.” RR 12, 18. The district court explained that “the October 1 order was not a

conclusive determination”—and therefore did not fall within the collateral order

doctrine—“because proponents had not asserted the First Amendment privilege


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over any specific document or communication.” RR 14. “Proponents’ blanket as-

sertion of privilege was unsuccessful,” the court explained, “but whether the privi-

lege might apply to any specific document or information was not finally deter-
mined in the October 1 order.” RR 14.3

In response, Proponents offered to select a purportedly representative sample

of documents that they claimed to be privileged under the First Amendment for the

district court’s in camera review. The district court agreed to that proposal. Pro-

ponents submitted 60 documents including ones that: “contain[] arguments to be

presented to voters,” “discuss[] a campaign targeted to certain voters,” “discuss[]

language to be used in conveying a message to voters,” provide “focus group re-

sponses to various campaign themes,” and offer “a post-election summary of suc-

cessful themes conveyed to voters.” RR 4-6.

After undertaking that review, the district court issued an order on Novem-

ber 11, 2009, that concluded that “the qualified First Amendment privilege does

not provide the documents much, if any, protection against disclosure,” and di-

rected Proponents to produce the 21 documents the court deemed responsive to the


3 Proponents complain that this is a “peculiar reading” of the district court’s or-

der, Show Cause Resp. 12, but as the district court explained. because the qualified
First Amendment privilege (where it applies) requires a balancing of the harm of
disclosure against the need for the evidence, that “balancing tends to limit or con-
fine the First Amendment privilege to those materials that rather directly implicate
rights of association.” RR 33. The privilege cannot be asserted in gross.


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document request Plaintiffs had revised pursuant to the court’s October 1 order.

RR 9.

On November 13, 2009, Proponents noticed a second interlocutory appeal

from “the orders of the Northern District of California . . . dated October 1, Octo-

ber 23, and November 11, 2009, to the extent they deny Defendant-Intervenors’

Motion for a Protective Order and/or require the production of documents asserted

as privileged under the First Amendment.” Doc #253 (No. 09-17551). Without

first filing a motion for a stay of the November 13 order in the district court, Pro-

ponents filed a motion in this Court to stay the district court’s discovery orders.

Notwithstanding the district court’s repeated denial of Proponents’ request

for a blanket prohibition on discovery of their non-public communications—and

Plaintiffs’ willingness to agree to an “attorneys-eyes only” protective order and the

redaction of the names of Proponents’ rank-and-file volunteers—Proponents per-

sisted in their refusal to produce any of the disputed documents. Plaintiffs there-

fore requested that the district court direct immediate production of the documents.

SRR 8. The district court referred the matter to Magistrate Judge Spero, who en-

tered an order on November 19 that directed Proponents to produce documents re-

sponsive to Plaintiffs’ discovery request on “a rolling basis to conclude not later

than the close of fact discovery on November 30, 2009.” SRR 6. In so doing, the

court “reiterate[d] its view that appropriate protections can be implemented to re-



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duce or eliminate many of the problems that proponents believe they will suffer as

a result of the production of documents.” SRR 5.

To that end, the court provided that the “[n]ames of rank-and-file campaign

volunteers and similarly situated individuals shall be redacted from all documents

produced to plaintiffs” and further directed the parties to negotiate a protective or-

der limiting dissemination of the discoverable documents. SRR 6. By November

20, Plaintiffs and Proponents had made substantial progress in negotiating an “at-

torneys eyes only” protective order. Declaration of Matthew D. McGill (

McGill Decl.”) (attached as Exhibit 1). Proponents, however, construed this

Court’s November 20 temporary stay of the district court’s November 13 privilege

ruling as also staying Judge Spero’s November 19 directive that the parties agree

upon a protective order and, on November 21, terminated those discussions.

McGill Decl. at ¶ 9.

ARGUMENT

I.

This Court Should Dismiss These Appeals Because It Lacks
Jurisdiction To Review The District Court’s Interlocutory
Discovery Orders.

Under 28 U.S.C. § 1291, this Court’s jurisdiction is limited to “final deci-

sions of the district courts.” Because “discovery orders are interlocutory in na-

ture,” they are almost invariably “nonappealable” unless the party subject to that

order refuses to comply and pursues an appeal from the imposition of sanctions.



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Truckstop.net, LLC v. Sprint Corp., 547 F.3d 1065, 1067 (9th Cir. 2008); see also

United States v. Fernandez, 231 F.3d 1240, 1245 (9th Cir. 2000).

Although the overwhelming majority of discovery orders are nonfinal and,

hence, non-appealable, the Supreme Court has held that under the collateral order

doctrine a party may appeal from a “narrow class of decisions that do not terminate

the litigation, but must, in the interest of achieving a healthy legal system, nonethe-

less be treated as final.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 867 (1994); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546 (1949). Both the Supreme Court and this Court, however, have “cautioned

that th[is] ‘narrow’ exception should stay that way and never be allowed to swal-

low the general rule, that a party is entitled to a single appeal, to be deferred until

final judgment has been entered.” Truckstop.net, 547 F.3d at 1070 (quoting Digi-

tal Equip. Corp., 511 U.S. at 868).



A discovery order is immediately appealable under the collateral order doc-

trine when it “(1) conclusively determines the disputed question, (2) resolves an

important issue completely separate from the merits of the action, and (3) is effec-

tively unreviewable on appeal from a final judgment.” Sell v. United States, 539

U.S. 166, 176 (2003) (internal quotation marks omitted). This “determination

should not be made lightly because the principle that appellate review should be

deferred pending the final judgment of the district court is central to our system of

jurisprudence.” Truckstop.net, 547 F.3d at 1068 (quoting United States v. Amlani,


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169 F.3d 1189, 1192 (9th Cir. 1999)). Failure to satisfy any of the three elements

of the collateral order doctrine is fatal to an assertion of appellate jurisdiction.

Truckstop.net, 547 F.3d at 1068.



This Court lacks jurisdiction over Proponents’ premature appeals of the dis-

trict court’s discovery orders because the only issue resolved by those orders is in-

extricably intertwined with the merits of the case.

A.

The Issue Conclusively Resolved By The District Court’s
Orders Is Inseparable From The Merits Of The Case.



This Court lacks collateral order jurisdiction over Proponents’ appeals be-

cause the district court’s discovery orders do not “resolve[ ] an important issue

completely separate from the merits of the action.” Sell, 539 U.S. at 176. As the

Supreme Court has explained, “[a]llowing appeals from interlocutory orders that

involve considerations enmeshed in the merits of the dispute would waste judicial

resources by requiring repetitive appellate review of substantive questions in the

case.” Van Cauwenberghe, 486 U.S. at 527-28. As shown below, Proponents’ in-

vocation of the First Amendment privilege necessarily depends on their view of the

merits of Plaintiffs’ constitutional challenge to Prop. 8 and thus cannot be deemed

“collateral” to the merits of Plaintiffs’ claim.



As a threshold matter, one must be clear about what, precisely, the district

court “conclusively determine[d]” in its October 1 and November 11 orders.

Taken together, the two orders held only that the First Amendment did not abso-



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lutely preclude any and all disclosure of the 60 documents Proponents hand-picked
for in camera review.4 The district court did not consider any contention by Pro-

ponents that a protective order governing disclosure of Proponents’ documents was

insufficient to protect Proponents’ First Amendment interests or activities. From

the outset of this dispute Proponents’ hard and fast position has been that any dis-

covery of their nonpublic communications transgresses the First Amendment and

that they are entitled to a “categorical shield against disclosure of the nonpublic in-

formation at issue.” Show Cause Resp. 14. Indeed, Proponents contend that the

First Amendment relieves them even of the “expense and burden” of asserting their

privilege in the manner dictated by Fed. R. Civ. P. 26(b)(5). Id. 13. In their words,

“the entire discovery inquiry is out of bounds under the First Amendment” Id.



That is significant because, as the district court explained, the “First

Amendment qualified privilege proponents seek to invoke, unlike the attorney-

client privilege, . . . is not an absolute bar against disclosure” but instead “requires

a balancing of the plaintiffs’ need for the information sought against proponents’

constitutional interests in claiming the privilege.” Doc # 214 at 5; see also Adolph

Coors Co. v. Wallace, 570 F. Supp. 202, 208 (N.D. Cal. 1983). Thus the availabil-

ity of the privilege turns on whether the harm from the particular disclosure out-

4 The district court’s October 1 order did not itself “conclusively determine[]”

any claim of privilege, as demonstrated by the fact that Proponents subsequently
appealed the denial of their claim of privilege. Doc #253 (09-17551). Proponents’
appeal No. 09-17241 thus falls outside the collateral order exception to the final
judgment rule and should be dismissed.


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weighs the other party’s need for the discovery, which in turns hinges in part on its

legal relevance. And in many cases in which the First Amendment privilege is as-

serted, the relief the privilege garners is not a flat ban on discovery (as Proponents

seek here) but rather a protective order that limits the potential harm of the discov-

ery process. See, e.g., Dole, 950 F.2d at 1462.



Proponents’ position is that there is no protective order which can ade-

quately protect their First Amendment interests because even the most limited dis-

closure necessarily results in “loss of confidentiality” and a “chill on future speech

resulting from loss of confidence that private communications . . . will remain con-

fidential.” Stay Mot. 19 n.11. That discovery breaches confidentiality may well be

true, but if it is, it is also true of virtually any civil litigant that is compelled to dis-

close nonpublic documents in a litigation proceeding.



In the balancing of interests the First Amendment privilege requires, an alle-

gation of harm so thin as an abstract “loss of confidentiality” could arguably pre-

vail only if the assertedly confidential information sought by the other party could

not possibly lead to admissible evidence.



But, as the district court concluded, that relevancy inquiry “is necessarily

enmeshed in the merits” of Plaintiffs’ constitutional challenge and is therefore in-

appropriate for resolution in the collateral order setting. Doc # 237 at 6; see also

Van Cauwenberghe, 486 U.S. at 528 (denial of a forum non conveniens motion is

not a collateral order because in deciding such a motion a court must “determine


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whether the pieces of evidence cited by the parties are critical, or even relevant, to

the plaintiff’s cause of action and to any potential defenses to the action”).



Indeed, in their motion for summary judgment, Proponents argued at some

length that they were entitled to judgment as a matter of law precisely because

Plaintiffs’ “claim that Proposition 8 . . . is the product of animus against gays and

lesbians is . . . legally irrelevant.” Doc # 172 at 101. According to Proponents,

“[b]y preserving the traditional institution of marriage, Proposition 8 advances sev-

eral legitimate—indeed, compelling—government interests” and, “[u]nder rational

basis review, a law that bears some conceivable rational relation to any legitimate

government interest—whether or not that interest actually motivated the lawmak-

ing body, simply cannot run afoul of the Fourteenth Amendment.” Id. at 102 (in-

ternal quotation marks omitted; emphasis in original).



In their brief opposing summary judgment, Plaintiffs responded that Propo-

nents’ approach was incorrect even under rational basis review as interpreted and

applied by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). Plaintiffs

argued that several pieces of publicly available evidence—including a speech by

the campaign manager for Yes on 8—that suggest that elements of the Yes on 8

campaign were in fact designed to appeal to the hostility of some voters toward

gay and lesbian individuals. See Am. Ass’n of Political Consultants Proposition 8

Case Study, 2009 Pollie Awards and Conference (Mar. 28. 2009), at

http://www.youtube.com/watch?v=ngbAPVVPD5k.


Plaintiffs have asserted

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throughout this case that, under controlling Supreme Court precedent, such evidence

is relevant to various aspects of their arguments that Prop. 8 violates the Equal Pro-

tection Clause. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484-

85 (1982) (“when facially neutral legislation is subjected to equal protection attack,

an inquiry into intent is necessary to determine whether the legislation in some sense

was designed to accord disparate treatment on the basis of racial considerations”).



Thus far, the district court has signaled agreement with Plaintiffs’ position that

a discriminatory purpose is relevant to the inquiry whether Prop. 8 violates the Equal

Protection Clause. See Doc # 214 at 4 (“the intent or purpose of Prop 8 is central to

this litigation”). Whether the district court was right or wrong to reject Proponents’

summary judgment contention that evidence of discriminatory purpose is irrelevant,

that question is hardly “completely separate from the merits”; it is the merits. Sell,

539 U.S. at 176. Accordingly, that question—even when it is asserted in connec-

tion with a claim of First Amendment privilege—is unreviewable as a collateral

order.

B.

Proponents’ Claim Of First Amendment Privilege Is Readily
Distinguished From Those Privilege Rulings This Court Has
Treated As Collateral Orders.



Proponents cite not one case in which this Court or another court of appeals

has treated a denial of a claim of privilege under the First Amendment as a collat-

eral order appropriate for interlocutory review. That is not surprising because the

qualified First Amendment privilege is readily distinguishable from the absolute


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privileges this Court and two others have found to be appropriate subjects of inter-

locutory appeals.



Proponents note—correctly—that this Court is among the minority of Cir-

cuits that permits interlocutory review of denials of certain evidentiary privileges.

See, e.g., In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1088 (9th Cir. 2007)

(allowing immediate appeal of denial of attorney client privilege). But to date this

Court has permitted collateral order appeals only of absolute privileges—which is

to say privileges that do not depend in any way on an assessment of the other

party’s need for the assertedly privileged evidence. While this Court has viewed

the “completely separate” prong of the collateral order doctrine as permitting

“some potential overlap between the questions in the interlocutory appeal and

those involved in the underlying suit,” id. at 1088-89, in this instance, the overlap
is neither “potential” nor modest.5 Proponents claim of privilege rises or falls en-

tirely upon their core merits contention that discriminatory intent is irrelevant to

the analysis of Plaintiffs’ constitutional claims. Again, in Proponents’ words: “un-

der controlling precedent, is the requested material relevant?” Show Cause Resp.


5 Proponents suggest that Napster permits interlocutory appeals even when “ap-

plication of the crime-fraud exception to the attorney-client privilege depend[ed]
upon the characterization of [a] loan to Napster [and] the outcome of the underly-
ing suit may depend upon this characterization.” Show Cause Resp. 17 (quoting
Napster, 479 F.3d at 1088). But Proponent’s quotation is not (as they suggest) the
Court’s own reasoning, but rather its recitation of the “contention” of “the Lieber
appellees.” Napster, 479 F.3d at 1088.


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18. In no sense is Proponents’ claim of privilege “independent of the cause itself.”
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).6



Nor do the Supreme Court’s decisions permitting interlocutory appeals of

denials of immunity aid Proponents. Proponents suggest that Napster “applied the

reasoning” of the immunity decisions—that unless the denial of immunity from

suit can be appealed before trial the immunity is effectively lost—and extended it

to “the analogous context of privileges.” Show Cause Resp. 18. But the appellate

jurisdiction analysis in Napster did not rely on any immunity decisions. And

properly so because just one year earlier the Supreme Court had cautioned against

the “lawyer’s temptation to generalize” from its immunity decisions warning that

such generalizations are “too easy to be sound and, if accepted, would leave the fi-

nal order requirement of § 1291 in tatters.” Will v. Hallock, 546 U.S. 345, 350-51

(2006).



Permitting collateral order appeals of denials of claims of First Amendment

privilege of the sort brought by Proponents certainly would do the job. Though the

Proponents seek to place themselves in a preferred position by describing their

speech as “political association and expression during elections,” their’s is not the

only type of speech the First Amendment protects. If a litigant can obtain an inter-

6 In any event, this Court’s view of the collateral order doctrine as permitting ap-

peals from denials of claims of attorney-client privilege is currently being reviewed
by the Supreme Court. See Mohawk Indus., Inc. v. Carpenter, No. 08-678 (argued
Oct. 5, 2009).


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locutory appeal simply by (1) observing that his nonpublic communications are

protected by the First Amendment, (2) insisting that the nonpublic communications

sought to be discovered are irrelevant, and (3) averring that any disclosure of his

nonpublic information will damage his First Amendment interest in confidential-

ity, then this Court soon will find itself on the receiving end of numerous interlocu-

tory appeals of discovery orders that, although framed in terms of the First

Amendment, will amount to nothing more than a garden-variety dispute about the

relevance of requested discovery.7 The collateral order doctrine cannot be

stretched so far.

II. THIS COURT SHOULD DENY PROPONENTS’ MOTION FOR A STAY

PENDING APPEAL.

A.

Proponents Have Not Satisfied The Prerequisites To A Stay
Established By Fed. R. App. P. 8.



Under Fed. R. App. P. 8, a party moving for a stay pending appeal “must

show that moving first in the district court would be impracticable; or state that, a

motion having been made, the district court denied the motion or failed to afford

the relief requested and state any reasons given by the district court for its action.”

Fed. R. App. P. 8(a)(2)(A). This rule is based in sound judicial administration and


7 One example: Where a terminated employee brings a wrongful termination suit
and seeks her supervisor’s non-public communications relating to her, if the super-
visor can insist that such communications are legally irrelevant, he can, like Pro-
ponents, claim a First Amendment privilege against the breach of the confidential-
ity of his nonpublic communications, and force the plaintiff to litigate the privilege
claim in the court of appeals.


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the prevailing view that “the court which is best and most conveniently able to ex-

ercise the nice discretion needed to determine this balance of convenience is the

one which has considered the case on its merits, and therefore is familiar with the

record.” Cumberland Tel. & Tel. Co. v. Louisiana Pub. Serv. Comm’n, 260 U.S.

212, 219 (1922).



Proponents nowhere contend that it was impractical to move for a stay of the

district court’s November 11 order in the district court. Instead, they state they

“had requested that the court stay any requirement that they produce the assertedly

privileged documents pending review by this Court.” Stay Mot. 6-7. Proponents’

statement is factually correct but they fail to mention that the “request[]” was made

in a letter—not a “motion” as required by Fed. R. App. P. 8—two weeks before the

Court entered the order form which Proponents now seek a stay. That October 28

request, included in a letter seeking leave to submit assertedly privileged docu-

ments in camera, states, in its entirety: “If . . . the Court rejects our claim of privi-

lege we request that the Court stay any order compelling production pending ap-

peal or mandamus.” RR 98.



In the Northern District of California, “[a]ny written request to the Court for

an order must be presented” either by “motion” or “[s]tipulation of the affected

parties.” N.D. Cal. L. R. 7-1(a). A letter, it should go with out saying, is not a mo-

tion, particularly when it contains none of the required contents of a motion. See

N.D. Cal. L. R. 7-2(b).


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Proponents’ failure to seek relief first in the district court is not merely a

matter of idle formality. It violates the “cardinal principle with respect to stay ap-

plications under Rule 8.” 16A Wright, Miller, et al., Federal Practice and Proce-

dure § 3954 (3d ed. 1999). By failing to move for a stay in the district court (and

thereby also failing to provide Plaintiffs an opportunity to oppose their requested

relief) the Proponents have frustrated the district court’s control of its discovery

process, threatened its carefully calibrated management of this case, and imposed

on this Court the burden of “exercis[ing] the nice discretion needed to determine

this balance of convenience” except in the absence of the district court’s “famil-

iar[ity] with the record.” Cumberland Tel., 260 U.S. at 219.



If Proponents had sought a stay in the district court, the district court might

have directed the parties to agree upon a protective order, as Judge Spero did on

November 19. By the close of business on November 20, Proponents and the

Plaintiffs had agreed upon most of the terms of that order. The only significant

term on which Plaintiffs and Proponents had not yet reached agreement was a pro-

vision excluding certain persons from the “attorneys eyes only” provision of the

protective order.



To answer Proponents’ concern that their strategic plans could be divulged

to their “political enemies,” the Plaintiffs offered to exclude “any Counsel or em-

ployee who held an official position in any primarily formed ballot committee re-

lated to Proposition 8” or a similar organization circulating petitions to repeal Prop.


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8 in 2010. McGill Decl. ¶ 7.8 But Proponents terminated negotiations over the

protective order, when this Court issued its temporary stay of the district court’s

November 11 privilege ruling. McGill Decl. ¶ 9.



Entry of a protective order might have enabled the district court to better

evaluate Proponents’ claims of harm to their First Amendment interests by taking

those allegations out of the abstract—e.g., “[t]he harm . . . is the loss of confidenti-

ality” (Stay Mot. 19 n.11)—and analyzing the potential harm that might arise from

the disclosures that actually would occur in the litigation. But by seeking relief

first in this Court, Proponents short-circuited the process, precluding the district

court from undertaking that analysis and fashioning relief (if any) appropriate to its

result.



This case thus exemplifies precisely why the Federal Rules of Appellate

Procedure generally require those seeking a stay to move first in the district court.

Proponents should not be rewarded for their refusal to comply with those rules;

their motion for a stay pending appeal should be denied. See, e.g., Baker v. Adams

County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (per curiam);


8
Proponents had sought a much broader exclusion, barring any counsel or em-
ployee who has “previously been involved [or] has [] intention in the future of be-
ing involved in any organization, association, campaign, group, coalition, or other
entity that advocated for or against Proposition 8 or for or against any other ballot
initiative, constitutional amendment, or state law (regardless of the state) that ad-
vocated for or against same-sex marriage.” McGill Decl. ¶ 6.


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S.E.C. v. Dunlap, 253 F.3d 768, 774 (4th Cir. 2001); Hirschfeld v. Bd. of Elections,

984 F.2d 35, 38 (2nd Cir. 1993).

B.

Proponents Do Not Satisfy The Requirements For A Stay
Pending Appeal.



To obtain a stay pending appeal, Proponents must demonstrate that they are

“likely to succeed on the merits, that [they are] likely to suffer irreparable harm in

the absence of . . . relief, that the balance of equities tips in [their] favor, and that

[the stay] is in the public interest.” Winter v. Natural Res. Def. Council, 129 S. Ct.

365, 374 (2008). Proponents cannot satisfy any of these requirements.

1.

Proponents Have Not Shown A Likelihood Of Success
On The Merits



For at least four reasons, Proponents are unlikely to prevail on their claim

that the First Amendment bars all discovery of their nonpublic communications.



First, Proponents have voluntarily chosen to be a party to this litigation.

While it is generally true that the First Amendment privilege is available to both

plaintiffs and defendants, as Proponents seemed to acknowledge in their briefing in

the district court because a party voluntarily chooses to become a party to a litiga-

tion presumably also can withdraw from the litigation to avoid unwanted discov-

ery, the First Amendment privilege is available to voluntary parties only to the ex-

tent that the discovery violates the doctrine of unconstitutional conditions. Doc

#197 at 12 (arguing that extending First Amendment privilege to Proponents is “in

keeping with the longstanding ‘unconstitutional conditions’ doctrine”). For exam-


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ple, when a plaintiff sues to vindicate a constitutional right and through discovery

is put to the choice of either allowing an intrusion into his First Amendment rights

or giving up the right on which he sued, the unconstitutional conditions