Case3:09-cv-02292-VRW Document250 Filed11/06/09 Page1 of 2

GIBSON,DUNN &CRUTCHERLLP
LAWYERS
A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS

555 Mission Street, Suite 3000 San Francisco, California 94105-2933

(415) 393-8200
www.gibsondunn.com

November 6,2009

Direct Dial Client No.

(415) 393-8292 T 36330-00001
Fax No.

The Honorable Vaughn R. Walker

Chief Judge of the United States District Court
for the Northern District of California
450 Golden Gate Ave.
San Francisco, California 94 102

Re: Perry v. Schwarzenegger, Case No. C-09-2292 VRW

Dear Chief Judge Walker:

I write regarding Ms. Moss's letter (Doc #249) and "Defendant-Intervenors' Privilege
Log for Sample Documents Submitted for In Camera Review ("Privilege Log") served this
afternoon. A copy of the Privilege Log is attached for the Court's reference as Exhibit 1.

To assert a privilege under the First Amendment, Proponents must make aprima facie
showing that disclosure of these documents will lead to harassment or other "chilling" of
associational rights. Dole v. SEIU, AFL-CIO, Local 280, 950 F.2d 1456, 1460 (9th Cir. 1991).
But the Privilege Log contains no basis for determining that anyone would suffer such harm
from the release of these documents and information to Plaintiffs (or into the public record). The
descriptions are exceedingly vague, but the subjects of the documents submitted to the Court
appear to be largely political messaging, strategy and fundraising. Proponents claim that people
involved in the campaign would communicate differently if they had known that their
communications would be revealed. See Doc #187-10 at 4. But this is not an appropriate basis
for withholding production, particularly if an appropriate protective order is entered. Doc #214
at 6; compare Docs ##187-2 at 5, 187-12 at 3, with McLaughlin v. Service Employees Union,
AFL-CIO, 880 F.2d 170, 175 (9th Cir. 1989); see Doc #237 at 5. Plaintiffs have repeatedly
proposed such an order. See Docs ##I91 at 16,223 at 12,236 at 2,242.

Proponents object to the production of documents that reveal the identities of Prop. 8
leaders and managers whose names they claim have not yet been revealed. But there is no
authority for the proposition that such individuals should remain anonymous. See Docs ##214 at

LOS ANGELES NEW YORK WASHINGTON, D . C . SAN FRANCISCO PAL0 ALTO LONDON
PARIS MUNICH BRUSSELS DUBAI SINGAPORE ORANGE COUNTY CENTURY CITY DALLAS DENVER
 Case3:09-cv-02292-VRW Document250 Filed11/06/09 Page2 of 2
GIBSON,DUNN SrCRUTCHERLLP

The Honorable Vaughn R. Walker

November 6,2009
Page 2

6-9,237 at 7-8. As the architects of a major political campaign, Proponents are simply not the
same as rank and file members of a political group or anonymous pamphleteers operating on
their own. Cf National Ass'n for A. of C. P. v. Alabama, 357 U.S. 449,460-63 (1958); McIntyre
v. Ohio Elections Comm 'n, 514 U.S. 334,351 (1995).1 In any event, the public record contains
at least one document revealing the names of four members of the Executive Committee, calling
into question the claim that the names of Prop. 8 supporters in key campaign roles are, in fact,
anonymous. Oct. 20,2008 Letter fiom Ron Prentice, Mark Jansson, Edward Dolejsi and
Andrew Pugno to Jim Abbott (attached as Exhibit 2); see Lisa Leff, Cali$ Gay Marriage Ban
Backers Target Businesses, S.F. Chron., Oct. 23,2008 (attached as Exhibit 3). This document
was neither produced to the Plaintiffs by Proponents, nor listed on the Privilege Log, but
broadcasts some of the names of the Yes on 8 campaign's Executive Committee members.

As we are not able to comment further on Proponents' filing, Plaintiffs deeply appreciate
the Court's time and effort in reviewing the documents submitted in camera, and the Court's
efforts in working with the parties to assure a full and fair opportunity to conduct the discovery
that is necessary and get that discovery done on schedule. See Doc #246 at 42:3-11.

Finally, Plaintiffs wish to bring to the Court's attention that, in addition to withholding all
non-public documents from production, Proponents more recently have refused to make
themselves available for deposition until this long-running dispute over privilege is resolved.
See Nov. 4 e-mail fiom Ms. Moss (attached as Exhibit 4). For this reason, it is of the utmost
importance that these issues be promptly and finally resolved so that Plaintiffs will no longer be
denied the opportunity to prepare this case for a January 11,2010 trial. Because of the active
role that the Court is and has been playing in the dispute over Proponents' claims of privilege,
Plaintiffs have not filed additional motions to compel production of documents to require
Proponents-voluntary participants in this litigation-to sit for depositions before the fast
approaching November 30 fact discovery cut-off. If the Court believes that a formal motion on
these issues would be helpful, we would appreciate the opportunity to discuss this with the Court
and counsel.

Counsel for Plaintiffs

cc: Counsel of Record

The Privilege Log asserts that these documents contain "names of supporters of campaign,"
"anonymous volunteer names," or "potential donors' names." Plaintiffs have said repeatedly
that they do not seek the names of anonymous rank and file Yes on 8 supporters, and have no
objection to redaction of this information from the documents.
Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page1 of 8

Exhibit 1
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page2 of 8

Defendant-Intervenors' Privilege Log

for Sample Documents Submitted for In Camera Review
Perry v. Schwarzennegger , No. 09-2292 (N.D. Cal.)

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 1 DEF_INT_PRIV_000001- First Email string with 6/26/2008 Frank Schubert, Mark Jansson Frank Schubert, Mark Nonpublic document reflects
12 Amendment attached draft to Jansson, Ron Prentice, internal discussion and planning
agenda and 6/27/2008 Andrew Pugno, Doe 1, Doe 2, about campaign and fundraising
finance strategy Doe 3, Lori Wortz, Jeff Flint, strategy and reveals
outline Sarah Pollo, Nancy Limon, donor/volunteer/member names.
Kristy Babb, Doe 4, Steve
Linder, Doe 5
Doc. 2 DEF_INT_PRIV_000013- First Email string with 6/10/2008 Mark Jansson, Andrew Pugno Mark Jansson, Andrew Pugno, Nonpublic document reflects
16 Amendment attached draft to Ron Prentice, Doe 1 and Doe internal strategy regarding
organizational 6/11/2008 2 organization of Protect Marriage
statement coaltion of supporters, including
edits to draft document.

Doc. 3 DEF_INT_PRIV_000017- First Email string 8/5/2008 Frank Schubert, Jennifer Kerns Frank Schubert, Jennifer Ron Prentice, Nonpublic document reflects
35 Amendment Kerns, Jeff Flint Andrew Pugno, discussion of campaign
Mark Jansson, Doe messaging.
1
Doc. 4 DEF_INT_PRIV_000036- First Email string with 8/31/2008 Frank Schubert, Doe 1, Gary Ron Prentice, Andrew Pugno, Jeff Flint Nonpublic document reflects edits
41 Amendment attached draft ad to 9/1/2008 Lawrence, Jeff Flint, Mark Doe 1, Doe 2, Mark Jansson, to draft television ad with copy of
script Jansson Frank Schubert, Gary draft ad.
Lawrence, Jeff Flint
Doc. 5 DEF_INT_PRIV_000042 First Web page Andy Pugno Nonpublic document reflects draft
Amendment message statement regarding Protect
and Attorney Marriage.com created by counsel
Work Product to campaign.

Doc. 6 DEF_INT_PRIV_000043- First Email string with 10/11/2008 Doe 1, Doe 2 Marc Jansson, Doe 1, Doe 3, Nonpublic document reveals
49 Amendment attached draft to Doe 4 internal campaign messaging
flyers and 10/16/2008 strategy discussions and edits to
messaging messaging. Reveals anonymous
strategy memo volunteer names.

Doc. 7 DEF_INT_PRIV_000050- First Email string with 6/25/2008 Frank Schubert Jeff Flint, Andrew Pugno, Nonpublic document reflects draft
63 Amendment attachment (draft Mark Jansson, Gary messaging related to Proposition
messages) Lawrence, and Doe 1 8, including edits to potential
message.

Doc. 8 DEF_INT_PRIV_000064- First Email string 6/13/2008 Ron Prentice, Mark Jansson Mark Jansson, Ron Prentice, Nonpublic document reflects
69 Amendment Andrew Pugno, Doe 1 and internal discussions and planning
Doe 2 about campaign messaging and
strategy.

1
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page3 of 8

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 9 DEF_INT_PRIV_000070- First Email string 8/15/2008 Doe 1 Ron Prentice, Jeff Flint, Frank Nonpublic document reflects
73 Amendment Schubert, Doe 2, Doe 3, Doe internal discussion about possible
4 messaging and outreach; also
religious association.

Doc. 10 DEF_INT_PRIV_000074 First Email string 9/22/2008 Ron Prentice, Frank Schubert Frank Schubert, Andrew Nonpublic document reflects
Amendment to Pugno, Mark Jansson, Doe 1, internal messaging strategy
9/23/2008 Jeff Flint, Doe 2 discussions.
Doc. 11 DEF_INT_PRIV_000075- First Email with 10/5/2008 Ron Prentice Doe 1, Andrew Pugno, Mark Nonpublic document reflects
78 Amendment attached Jansson, Doe 2 internal campaign strategy and
campaign messaging discussions.
strategy
documents
Doc. 12 DEF_INT_PRIV_000079- First Email with 7/22/2008 Frank Schubert Andrew Pugno, Ron Prentice, Nonpublic document reflects
80 Amendment attached voter Mark Jansson, Doe 1, Doe 2, internal discussion regarding
and Attorney- guide Doe 3, Jeff Flint, Sarah Pollo, arguments in response to official
Client Nancy Limon, Gary Lawrence voter guide. Also reflects legal
Communicatio advice of counsel and request for
n additional legal advice.

Doc. 13 DEF_INT_PRIV_000081- First Email 2/22/2007 Andrew Pugno Doe 1, Doe 2, Mark Jansson, Doe 7 Nonpublic document reflects
82 Amendment Doe 3, Doe 4, Doe 5, Doe 6 internal discussion about
and Attorney- marriage amendment language.
Client Also reflects legal advice of
Communicatio counsel to campaign.
n
Doc. 14 DEF_INT_PRIV_000083- First Email string 6/13/2008 Ron Prentice, Andrew Pugno Andrew Pugno, Ron Prentice Doe 1, Doe 2, Mark Nonpublic document reflects
84 Amendment Jansson, Doe 3, internal discussion about
Frank Schubert, campaign strategy, reveals
Jeff Flint, Doe 4 volunteer names.

Doc. 15 DEF_INT_PRIV_000085- First Email 9/23/2008 Ron Prentice; Doe 1 Doe 1; Ron Prentice Nonpublic document reflects
86 Amendment to internal discussion regarding
9/24/2008 campaign strategy and
fundraising, and reveals
volunteers names.
Doc. 16 DEF_INT_PRIV_000087- First Email string 6/26/2008 Doe 1, Doe 2, Ron Prentice, Ron Prentice, Andew Pugno, Jeff Flint, Frank Nonpublic document reflects
93 Amendment to 7/1/2008 Doe 3, Frank Schubert Doe 2, Doe 1, Doe 3, Steve Schubert, Andrew internal discussion and planning
Linder Pugno, Doe 2 about campaign fundraising
strategy and reveals donors
and/or anonymous volunteers'
identities.

2
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page4 of 8

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 17 DEF_INT_PRIV_000094 First Email string 10/9/2008 Doe 1, Gary Lawrence Gary Lawrence, Doe 2, Frank Nonpublic document reflects
Amendment to Schubert, Jeff Flint internal discussion about
10/10/2008 effectiveness of Prop. 8 ad and
reveals intentions and political
convictions of a California voter
unaffiliated with campaign.

Doc. 18 DEF_INT_PRIV_000095- First Email string 10/31/2008 Ron Prentice, Doe 1, Frank Frank Schubert, Doe 1, Ron Andrew Pugno, Jeff Nonpublic document reflects
101 Amendment to Schubert, Jeff Flint, Andrew Prentice, Jeff Flint, Andrew Flint internal discussion and planning
11/1/2008 Pugno Pugno regarding fundraising strategy.

Doc. 19 DEF_INT_PRIV_000102- First Email string 9/9/2008 Mark Jansson, Ron Prentice Gary Lawrence, Doe 1 Nonpublic document reflects
103 Amendment internal discussion regarding
campaign strategy; reveals
volunteers' names.
Doc. 20 DEF_INT_PRIV_000104- First Email string 9/19/2008 Mark Jansson, Frank Schubert, Frank Schubert, Mark Jeff Flint Nonpublic document reflects
107 Amendment to Ron Prentice Jansson, internal discussion and planning
9/20/2008 about campaign strategy and
messaging; reveals the names of
volunteers.

Doc. 21 DEF_INT_PRIV_000108- First Email with 10/5/2008 Mark Jansson Andrew Pugno, Doe 1, Doe 2, Nonpublic document reflects
115 Amendment attached draft and Ron Prentice internal discussions and planning
campaign regarding campaign strategy and
strategy memo messaging. Reveals anonymous
volunteers' names.

Doc. 22 DEF_INT_PRIV_000116- First Email string with 10/3/2008 Doe 1, Doe 2, Mark Jansson Doe 2, Doe 3, Mark Jansson, Doe 4 Nonpublic document reflects
127 Amendment attachments to Andrew Pugno, Doe 5, Doe 6, internal discusions and planning
10/4/2008 Ron Prentice, Frank Schubert, about campaign strategy and
Jeff Flint, Jennifer Kerns messaging. Reveals anonymous
volunteers' names.

Doc. 23 DEF_INT_PRIV_000128- First Email string 9/17/2008 Jennifer Kerns, Frank Schubert Jennifer Kerns, Frank Nonpublic document reflects
129 Amendment Schubert, Ron Prentice, internal discussions and planning
Andrew Pugno, Mark Jansson regarding campaign strategy and
messaging related to field poll on
Proposition 8

Doc. 24 DEF_INT_PRIV_000130- First Email string 7/1/2008 Gary Lawrence, Frank Schubert Frank Schubert, Gary Nonpublic document reflects
132 Amendment Lawrence, Jeff Flint, Ron internal discussions and planning
Prentice, Andy Pugno regarding polling data and
messaging strategy
Doc. 25 DEF_INT_PRIV_000133- First Email string 6/17/2008 Doe 1; Ron Prentice Ron Prentice; Doe 1 Andew Pugno, Nonpublic document reflects
134 Amendment Mark Jansson, Doe internal discussion and planning
1 and Doe 2 about campaign strategy; reveals
anonymous volunteers' names.

3
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page5 of 8

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 26 DEF_INT_PRIV_000135- First Draft memo Mark Jansson Nonpublic document reveals
138 Amendment internal planning about campaign
strategy related to get-out-the-
vote efforts and coordination with
affiliated groups and individuals.

Doc. 27 DEF_INT_PRIV_000139- First Draft argument 7/2/2008 Andy Pugno Nonpublic document reflects
140 Amendment internal edits to ballot argument.

Doc. 28 DEF_INT_PRIV_000141- First Email with 9/18/2008 Frank Schubert Ron Prentice, Andrew Pugno, Nonpublic documents reflect
160 Amendment attached agenda, Doe 1, Doe 2, Doe 3, Doe 4, internal discussion and planning
weekly Doe 5, Mark Jansson, Jeff regarding messaging and
contribution tally Flint, Gary Lawrence, and campaign strategy.
report, budgets, Steve Linder
polls, fraft ad
scripts
Doc. 29 DEF_INT_PRIV_000161- First Flyer Anonymous Anonymous political speech.
162 Amendment
Doc. 30 DEF_INT_PRIV_000163- First Email string with 6/5/2008 Andrew Pugno Ron Prentice, Doe I, Doe 2, Nonpublic document reveals
198 Amendment attached draft Mark Jansson, Doe 3 and Doe internal discussions and planning
campaign 4 about campaign strategy and
strategy proposal messaging; reveals the names of
anonymous volunteers.

Doc. 31 DEF_INT_PRIV_000199- First Email string 5/28/2008 Doe 1, Doe 6, Doe 2 Ron Prentice, Doe 1, Doe 2, Nonpublic document reveals
201 Amendment Doe 3, Andrew Pugno, Doe 4, internal discussions and planning
Doe 5, Doe 6, Doe 7 and Doe about campaign strategy and
8 messaging; reveals the names of
anonymous volunteers/supporters
of Prop. 8 campaign.

Doc. 32 DEF_INT_PRIV_000202- First Email with 8/14/2008 Doe 1 Multiple Doe volunteers and Nonpublic document reveals
207 Amendment attached Mark Jansson internal discussion and planning
volunteer related to campaign strategy.
instructions and
grassroots
strategy
Doc. 33 DEF_INT_PRIV_000208 First Email 8/19/.2008 Jennifer Kerns Mark Jansson Doe 1 Nonpublic document reflects
Amendment internal discussion about
associational activity and reveals
name of anonymous volunteer.

Doc. 34 DEF_INT_PRIV_000209- First Email 8/19/2008 Frank Schubert Doe 1 Jeff Flint, Mark Nonpublic document reflects
211 Amendment Jansson, Nancy internal discussion and planing
Limon related to campaign strategy and
messaging; reveals the names of
anonymous volunteers.

4
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page6 of 8

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 35 DEF_INT_PRIV_000212- First Email string 8/20/2008 Doe 1, Ron Prentice, Frank Ron Prentice, Doe 2, Andrew Frank Schubert, Nonpublic document reveals
214 Amendment Schubert Pugno, Doe 3, Doe 4, Mark Jeff Flint internal campaign strategy and
Jansson discussions about same.
Doc. 36 DEF_INT_PRIV_000215- First Email with 9/10/2008 Sarah Pollo Doe 1, Doe 2, Doe 3, Doe 4, Nonpublic document reveals
218 Amendment attached Delepine Tiffany, Frank internal discussion and planning
Committee Schubert, Jeff Flint, Doe 5, regarding campaign strategy and
meeting minutes Doe 6, Mark Jansson, Doe 7, messaging; reveals anonymous
Doe 8, Doe 9, Doe 10, Nancy volunteers' names.
Limon, Doe 11, Ron Prentice,
Steve Linder, Doe 12 and Doe
13

Doc. 37 DEF_INT_PRIV_000219- First Email with 9/24/2008 Frank Schubert Ron Prentice, Andrew Pugno, Nonpublic document reveals
231 Amendment attached survey Doe 1, Mark Jansson, Doe 2, internal planning and discussion
questionnaire Doe 3, Doe 4, Jeff Flint, Gary about campaign strategy.
Lawrence

Doc. 38 DEF_INT_PRIV_000232- First Email string with 7/29/2008 Doe 1 Doe 2, Doe 3, Doe 4, Doe 5, Nonpublic document reveals
248 Amendment attached to Doe 6, Doe 7, Doe 8, Frank internal discussion and planning
Grassroot and 7/30/2008 Schubert, Jeff Flint, Ron regarding campaign strategy.
Get Out the Vote Prentice, Doe 9, Doe 10; Doe
draft proposal 11

Doc. 39 DEF_INT_PRIV_000249- First Email with 8/2/2008 Doe 1 Doe 2 and Ron Prentice Nonpublic document reveals
254 Amendment attached internal discussion and planning
spreadsheet regarding campaign strategy;
listing names of reveals volunteers' and potential
potential donors donors' names.

Doc. 40 DEF_INT_PRIV_000255- First Email 10/7/2008 Jeff Flint Ron Prentice, Andrew Pugno, Frank Schubert Nonpublic documents reveals
256 Amendment Doe 1, Doe 2 and Mark internal discussion and planning
Jansson regarding campaign strategy.

Doc. 41 DEF_INT_PRIV_000257- First Email with 3/14/2008 Ron Prentice Doe 1, Doe 2 Doe 3, Doe 4, Doe Nonpublic document reveals
258 Amendment attached letter to 5; Mark Jansson, names of supporters of campaign
potential donors Frank Schubert, and reflects nonpublic
Jeff Flint communications with same.

Doc. 42 DEF_INT_PRIV_000260- First Email 10/16/2008 Doe 1 Ron Prentice, Doe 2, Frank Doe 3, Gary Nonpublic document reflects
261 Amendment Schubert, Jeff Flint Lawrence; Doe 4 internal discussion and planning
and Doe 5 regarding campaign strategy;
reveals anonymous volunteer
names.
Doc. 43 DEF_INT_PRIV_000262- First Email 8/13/2008 Doe 1 Frank Schubert Ron Prentice, Jeff Nonpublic document reflects
263 Amendment Flint, Doe 2, internal discussion and planning
Andrew Pugno, and regarding campaign strategy;
Doe 3 reveals identity of potential donor

5
 Case3:09-cv-02292-JW Document250-1 Filed11/06/09 Page7 of 8

Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 44 DEF_INT_PRIV_000264- First Email string 7/27/2008 Steve Linder, Doe 3, Doe 1 Ron Prentice, Doe 1, Doe 2, Nonpublic document reflects
267 Amendment Doe 3, Steve Linder, Doe 4 internal campaign strategy and
discussions and reveals
volunteers' names and potential
donors' names.
Doc. 45 DEF_INT_PRIV_000268- First Email with 3/29/2007 Andrew Pugno Doe 1, David Bauer, Doe 2, Nonpublic document reveals
269 Amendment attached Doe 3, Mark Jansson, Doe 4, internal discussion regarding
marriage Doe 5, and Ron Prentice proposed constitutional
amendment amendment.
drafts
Doc. 46 DEF_INT_PRIV_000270- First Email with 3/12/2008 Andrew Pugno Doe 1 Doe 2, Doe 3, Ron Nonpublic documents reveal
274 Amendment attached Prentice, Doe 4 internal discussion and planning
and Attorney insructions related to getting Proposition 8 on
Client related to ballot; reflects legal advice
petitions regading validating petitions.

Doc. 47 DEF_INT_PRIV_000275- First Email with 6/7/2008 Mark Jansson Doe 1 Ron Prentice, Nonpublic documents reveal
279 Amendment attached Andrew Pugno, internal discussions and planning
campaign Doe 2, Doe 3 related to campaign strategy and
strategy messaging.
documents
Doc. 48 DEF_INT_PRIV_000280- First Email string 6/16/2008 Doe 1, Andrew Pugno Andrew Pugno, Ron Prentice, Nonpublic document reveals
282 Amendment to Jeff Flint, Doe 1 internal discussion and planning
6/17/2008 about messaging
Doc. 49 DEF_INT_PRIV_000283- First Email string 12/6/2007 Doe 1, Doe 2 Ron Prentice, Joe Infranco Doe 2, Doe 3, Doe Nonpublic document reveals
286 Amendment to 1/3/2008 4, Andy Pugno, internal discussions and planning
and Attorney- Doe 5, Ron about content of campaign
Client Prentice website. Also contains legal
Communicatio advice regarding wording.
n
Doc. 50 DEF_INT_PRIV_000297- First Email with 7/1/2008 Gary Lawrence Frank Schubert, Jeff Flint, Nonpublic document reveals
289 Amendment attached draft Andrew Pugno, Ron Prentice internal discussion regarding
ballot argument polling and draft ballot argument.

Doc. 51 DEF_INT_PRIV_000290- First Email with 10/20/2008 Frank Schubert Doe 1, Ron Prentice, Mark Jeff Flint, Sonja Nonpublic document reveals
296 Amendment attached Jansson, Andrew Pugno Eddings Brown, discussion and planning related to
Marriage Pledge Chip White, Cherri campaign strategy and
Rally Flow of Spriggs Hernandez messaging.
Events
Doc. 52 DEF_INT_PRIV_000297- First Email 10/16/2008 Doe 1 Frank Schubert, Jeff Flint, Doe Doe 3, Doe 4, Doe Nonpublic document reveals
300 Amendment 2, Ron Prentice, Andrew 5, Doe 6, Doe 7, internal discussion and planning
Pugno, Mark Jansson Doe 8, Doe 9, Doe related to campaign strategy.
10
Doc. 53 DEF_INT_PRIV_000301- First Grassroots 7/10/008 Nonpublic document reveals
313 Amendment strategic planning internal campaign strategy
memo

6
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Doc No. Bates Range Priv Call Doc Type Date Author(s) Recipient(s) Copyee(s) Basis of Privilege

Doc. 54 DEF_INT_PRIV_000314- First Email string 10/3/2008 Doe 1, Doe 2, Frank Schubert Doe 2, Doe 1, Jeff Flint, Frank Jeff Flint, Andrew Nonpublic document reveals
317 Amendment to Schubert, Andrew Pugno, Ron Pugno, Ron internal discussion and planning
10/8/2008 Prentice, Doe 3, Mark Prentice, Doe 3, regarding messaging; reveals
Jansson Mark Jansson volunteers' and potential
supporters' names.

Doc. 55 DEF_INT_PRIV_000318- First Email string with 10/23/2008 Chip White, Frank Schubert, Jeff Jeff Flint, Doe 1, Frank Doe 3, Andrew Nonpublic document reveals
322 Amendment attached draft Flint Schubert, Doe 2, Chip White Pugno internal discussion about and
press release edits to eventual press release.

Doc. 56 DEF_INT_PRIV_000323- First Email string 9/12/2008 Frank Schubert, Doe 5, Andrew Ron Prentice, Andrew Pugno, Nonpublic document reveals
325 Amendment to Pugno Doe 1, Doe 2, Doe 3, Mark internal discussion and editing
9/13/2008 Jansson, Gary Lawrence, Jeff regarding content of messaging.
Flint, Doe 4, Doe 5

Doc. 57 DEF_INT_PRIV_000326- First Email string with 6/27/2008 Gary Lawrence, Frank Schubert, Andrew Pugno, Ron Prentice, Nonpublic document reveals
343 Amendment attached draft Andrew Pugno Frank Schubert, Jeff Flint internal discussion, planning, and
phone script editing with regard to polling.

Doc. 58 DEF_INT_PRIV_000344- First Memo Nonpublic document reveals

354 Amendment internal post-election analysis of
strategy and messaging.

Doc. 59 DEF_INT_PRIV_000355- First Email 11/14/2008 Doe 1 Andrew Pugno; Doe 2, Mark Nonpublic document reveals
356 Amendment Jansson, Ron Prentice, Sonja internal post-election analysis of
Brown strategy and messaging.
Doc. 60 DEF_INT_PRIV_000357 First Draft Nonpublic draft of internal
Amendment television ad script never publicly
aired or distributed.

7
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Exhibit 2
OCT. 2 3 . 2 0 0 8 8 : 3 0 A M J I M ABBOTT AND A S S O C I A T E S NO. 4846-P. 1
Case3:09-cv-02292-VRW Document250-2 Filed11/06/09 Page2 of 5

October, ao, 2008

Certified Mail
Return Receint Reauested

Jim Abbott
Managing Partner
Abbott Bt Associates/Abbott Realty Group
435 4" Avenue
San Diego, CA gzioi

Dear Mr. Abbott,

We write as the Executive Committee of ProtectMarriage.com, the coalition

of churches, organizations and individuals who qualified Proposition 8 for the
November ballot. We represent the 61 percent of California voters who affirmed in
2000 that, "Only mamiage between a man and a woman is valid or recognized in
California." Proposition 8 will restore what four judges took away from the
citizernry- this same definition of marriage. As you know, the majority of citizens
of California and the United States agree with us that marriage should be between
a man and a woman.

Equality California is advertising on its website that it has received a

contribution of at least $io,ooo from you. Equality California opposes traditional
marriage and i s working to defeat Proposition 8. We are sure that you would want
to review the way that they are using Abbott &Associates' name, since niai~ymore
of your clients support traditional marriage than support same sex marriage. A
copy of an advertising page from Equality California's website is enclosed for your
information.

Be assured that this is not about lifestyle or rights for they are already codified and
protected in California. It is about a meaningFul tradition - marriage, which is
ageless, key to the well-being of our society and the rearing of children. It is too
important to be left to four unelectedjurists.

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

OCT. 2 3 . 2 0 0 8 8:31AM J I M A B B O T T AND A S S O C I A T E S NO. 4 8 4 6 P. 2
Case3:09-cv-02292-VRW Document250-2 Filed11/06/09 Page3 of 5
Mr. Jim Abbott
Abbott & Associates
October 20,2008

We respectfully request that Abbott & Associates withdraw its support of

Equality California. Make a donation of a like amount to ProtectMamiage.com
which will help us correct this error and restore Traditional Marriage. A donation
form is enclosed. We will be most grateful and will advertise on our website
Abbotk &Associates9generous contribution.

Were you to elect not to donate comparably, it would be a clear indication

that you are in opposition to traditional marriage. You would leave us no other
reasonable assumption. The names of any companies and organizations that
choose not to donate in like manner to ProtectMarriage.com but have given to
Equality California will be published. It is only fair fop Proposition 8 supporters to
know which companies and organizations oppose traditional marriage.

We will contact you shortly to discuss your contribution sincerely hoping to

receive your positive response.

The Executive Committee of ProtectMarriage.com and the millions of

Californians supporting Proposition 8 thank you for your thoughtful
consideration of this request.

ProteetlMarriage.com
By:

Ron Prentice
Yes on Prop 8, Edward Dolejsi
Campaign Chairman Executive Director, California
". . . -. Catholic-Conference

Mark A. Jansson Andrew Pugno

Executive Committee Member General Counsel
Enclosures

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

OCT. 2 3 . 2 0 0 8 8 : 3 1 A M J I M ABBOTT AND A S S O C I A T E S NO. 4846-P. 3
Case3:09-cv-02292-VRW Document250-2 Filed11/06/09 Page4 of 5Page I of 6

Sponsors
COI-porateand individual sponsors rnaltc a significant investment, providing EQCA with critically-
needccl resources to achieve equality.

If you are interested in learning more about sponsorship benefits, including Equality Awards
sponsorships, enlaii Michellc 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

\ \! ;\&\I ! f iY: ll<OlAl 5
 .. . .
OCT. 2 3 . 2 0 0 8 8 : 3 1 A M J I M ABBOTT AND A S S O C I A T E S NO. 4846-P.
Case3:09-cv-02292-VRW Document250-2 Filed11/06/09 Page5 of 5

Donation Form

yes;! X'III T ~ I ~ ! Enclosed is 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~wlcantrlbutlons M this Cismpalgn)

Clreck Darrztinns (WBMAIL)

Please make your creck payable to ProtectflrrlJr.r/agc.m"- Yes on S'andmail th13f o m andpvrcheck m:
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Case3:09-cv-02292-VRW Document250-3 Filed11/06/09 Page1 of 4

Exhibit 3
Calif. gay marriage ban backers target businesses Page 1 of 3
Case3:09-cv-02292-VRW Document250-3 Filed11/06/09 Page2 of 4

Calif. gay marriage ban backers target businesses

By LISA LEFF, Associated Press Writer
Thursday, October 23, 2008

(10-23) 17:22 PDT San Francisco, CA (AP) --

Leaders of the campaign to outlaw same-sex marriage in California are warning businesses that
have given money to the state's largest gay rights group they will be publicly identified as
opponents of traditional unions unless they contribute to the gay marriage ban, too.

ProtectMarriage.com, the umbrella group behind a ballot initiative that would overturn the
California Supreme Court decision that legalized gay marriage, sent a certified letter this week
asking companies to withdraw their support of Equality California, a nonprofit organization that is
helping lead the campaign against Proposition 8.

"Make a donation of a like amount to ProtectMarriage.com which will help us correct this error,"
reads the letter. "Were you to elect not to donate comparably, it would be a clear indication that
you are in opposition to traditional marriage. ... The names of any companies and organizations
that choose not to donate in like manner to ProtectMarriage.com but have given to Equality
California will be published."

The letter was signed by four members of the group's executive committee: campaign chairman
Ron Prentice; Edward Dolejsi, executive director of the California Catholic Conference; Mark
Jansson, a member of The Church of Jesus Christ of Latter-day Saints; and Andrew Pugno, the
lawyer for ProtectMarriage.com. A donation form was attached. The letter did not say where the
names would be published.

The unusual appeal reflects the increasing tension surrounding the tight race over Proposition 8,
which would change the California Constitution to limit marriage to a man and a woman. In recent
days, both sides in the debate have accused their opponents of threatening their respective
campaign volunteers and misleading voters.

San Diego businessman Jim Abbott, who owns a real estate company and is a member of Equality
California's board of directors, received one of the letters late Wednesday afternoon. His adult son
called Abbott to read it to him.

"He characterized it as a bit 'Mafioso,'" Abbott said. "It was a little distressing, but it's consistent
with how the 'yes' side of this campaign has been run, which is a bit over the top."

Abbott, who married his same-sex partner at the end of August, estimated that over the last decade
he has given $50,000 to Equality California, including a recent $10,000 gift to underwrite a San
Diego event that raised money to defeat Proposition 8.

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/10/23/state/n145556D05.DTL&type... 11/6/2009
Calif. gay marriage ban backers target businesses Page 2 of 3
Case3:09-cv-02292-VRW Document250-3 Filed11/06/09 Page3 of 4

When asked whether ProtectMarriage.com planned to name businesses that have supported the No
on 8 campaign, Prentice initially said he was unaware of any such effort.

"I'm not familiar of any organized attack against organizations that have given to No on 8," he said
Thursday.

But when asked about the letter to Equality California donors, Prentice confirmed they were
authentic and said the ProtectMarriage.com campaign was asking businesses backing the other
side "to reconsider taking a position on a moral issue in California."

Prentice said it was his understanding it was intended for large corporations such as cable
operators Time Warner and Comcast instead of small business owners like Abbott. Both Time
Warner and Comcast are listed on Equality California's Web site as corporate sponsors that gave
$50,000 each to the group.

Companies that have contributed directly to one of the campaign committees collecting cash to
fight Proposition 8, including one set up by Equality California, also were recipients of the letter,
Prentice said. That list includes companies such as Pacific Gas & Electric, Levi Strauss and AT&T.

"I think the IDing of, or outing of, any company is very secondary to the question of why especially
a public corporation would choose to take a side knowing it would splinter it's own clientele," he
said.

Equality California executive director Geoffrey Kors said Thursday he has heard from two other
business owners besides Abbott.

"It's truly an outrageous attempt to extort people," Kors said.

While an anti-Proposition 8 group called Californians Against Hate has posted lists of gay marriage
ban donors on the Internet and even launched boycotts of selected businesses, Kors said that work
has been independent of the official No on 8 campaign.

"They are going after our long-term funding and trying to intimidate Equality California donors
from giving any more to the No on 8 campaign and from giving to Equality California ever again."

While corporations often give to rival candidates for public office as a way of preserving their
government access no matter who wins, tit-for-tat solicitations are almost unheard of in ballot
initiative campaigns, said Robert Stern, president of the nonpartisan Center for Governmental
Studies.

"This is a proposition where you are on one side or the other. You vote yes or no, not yes and no,"
Stern said.

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/10/23/state/n145556D05.DTL&type... 11/6/2009
Calif. gay marriage ban backers target businesses Page 3 of 3
Case3:09-cv-02292-VRW Document250-3 Filed11/06/09 Page4 of 4

Though unusual and disturbing, Stern said there was nothing illegal about ProtectMarriage.com
hitting up Equality California supporters for money.

Sonya Eddings Brown, a ProtectMarriage.com spokeswoman, estimated that 36 companies were

targeted for the letter and said those that do not respond with a contribution would be highlighted
in a press release and on the campaign Web site.

She called the tactic "a frustrated response" to the intimidation felt by Proposition 8 supporters,
who have had their lawn signs stolen and property vandalized in the closing days of the heated
campaign.

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/10/23/state/n145556D05.DTL

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/10/23/state/n145556D05.DTL&type... 11/6/2009
Case3:09-cv-02292-VRW Document250-4 Filed11/06/09 Page1 of 2

Exhibit 4
Deposition Scheduling Page 2 of 2
Case3:09-cv-02292-VRW Document250-4 Filed11/06/09 Page2 of 2

From: Nicole Moss

To: Dettmer, Ethan D.
Cc: Jesse Panuccio
Sent: Wed Nov 04 11:13:16 2009
Subject: RE: Deposition Scheduling

Dear Ethan,

I am available tomorrow after 11:30 eastern to discuss deposition schedules. We are currently awaiting
confirmation on dates for the depositions of the Plaintiffs. In addition, I think it would be beneficial to
discuss the 30(b)(6) Deposition Notice Plaintiffs have served for Protect Marriage.

As I am sure you are aware shortly after the conclusion of our call with Judge Walker on Monday we
received a 30(b)(6) Deposition Notice for Protect Marriage noticing this deposition for November 9,
2009. It is our view that proceeding with this deposition, which on its face seeks to delve into the very
subject matters that are at the heart of Defendant-Intervenors’ privilege claims, is contrary to the
procedure the Court has adopted for treating with these privilege issues. Until the process ordered by
the Court is complete and these privilege issues resolved, this deposition will be a fruitless exercise
creating an unnecessary and unreasonable burden on all parties. While these privilege issues remain
unresolved, Defendant-Intervenors will have no choice but to assert our First Amendment privilege and
to instruct the deponent not to answer questions related to virtually all of the examination topics you
have identified. I am at a loss for what purpose could possibly be served by going through such an
empty exercise.

We need to determine whether it is in fact your intention to proceed with this deposition next Monday
despite the Court’s guidance on yesterday’s call or whether you agree that the deposition should be
postponed until these privilege matters are resolved. Please be aware that if you do intend to proceed,
we will be submitting a Rule 1.5 letter to Judge Walker seeking leave to file a motion pursuant to Rule
30(d)(3)(A) for an order limiting the deposition on the ground that conducting the deposition in advance
of final resolution of the First Amendment privilege issues would be unreasonably burdensome and
oppressive. We will also exercise our right under Rule 30(d)(3)(A) to suspend the deposition for the
time necessary to obtain such an order.

Please let me know what time tomorrow will work for this call.

Regards,
 
Nicole Jo Moss
Cooper & Kirk, P.L.L.C.
1523 New Hampshire Ave. N.W.
Washington, D.C.  20036
(910) 270‐8768
(202) 220‐9601 (fax)
(202) 423‐3237 (cell)
 

11/6/2009