Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page1 of 5

1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (Ohio Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

8
LAW OFFICES OF ANDREW P. PUGNO
9 Andrew P. Pugno (CA Bar No. 206587)
andrew@pugnolaw.com
10 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 608-3065, Facsimile: (916) 608-3066
11
ALLIANCE DEFENSE FUND
12 Brian W. Raum (NY Bar No. 2856102)*
braum@telladf.org
13 James A. Campbell (OH Bar No. 0081501)*
jcampbell@telladf.org
14 15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: (480) 444-0020, Facsimile: (480) 444-0028
15
ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,
16 GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
and PROTECTMARRIAGE.COM – YES ON 8, A
17 PROJECT OF CALIFORNIA RENEWAL

18 * Admitted pro hac vice

19 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
20
KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW
21 PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, DEFENDANT-INTERVENORS’
22 MOTION TO SHORTEN TIME FOR
RESPONSE TO AND HEARING OF
23 Plaintiffs, MOTION TO AMEND JANUARY 8,
2010 DISCOVERY ORDER
24 v.
Trial Date: January 11, 2010
25 ARNOLD SCHWARZENEGGER, in his official Judge: Chief Judge Vaughn R. Walker
capacity as Governor of California; EDMUND Magistrate Judge Joseph C. Spero
26 Location: Courtroom 6, 17th Floor
G. BROWN, JR., in his official capacity as
27 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
28 the California Department of Public Health and

DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME

CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page2 of 5

1 State Registrar of Vital Statistics; LINETTE

SCOTT, in her official capacity as Deputy
2 Director of Health Information & Strategic
Planning for the California Department of Public
3
Health; PATRICK O’CONNELL, in his official
4 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
5 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
6
Defendants,
7
and
8
PROPOSITION 8 OFFICIAL PROPONENTS
9 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
10 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
11 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
12
Defendant-Intervenors.
13

14
Additional Counsel for Defendant-Intervenors
15

16 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
17 tchandler@telladf.org
101 Parkshore Drive, Suite 100, Folsom, California 95630
18 Telephone: (916) 932-2850, Facsimile: (916) 932-2851
19 Jordan W. Lorence (DC Bar No. 385022)*
jlorence@telladf.org
20 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
21 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
22
* Admitted pro hac vice
23

24

25

26

27

28

DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME

CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page3 of 5

1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that pursuant to Local Rule 6-3 Defendant Intervenors Dennis
3
Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com
4
(“Proponents”) will and hereby do move this Court for an Order shortening the time within which the
5
Plaintiffs may respond and the Court may hear Proponents’ Motion to Amend January 8, 2010
6

7 Discovery Order to Add Additional Core Group Members. Proponents respectfully request that the

8 Court order Plaintiffs to file a response to the Motion to Amend, if any, by 12:00 p.m. on January 19,

9 2010, and the Court hear the motion as soon as is practicable given the trial schedule.
10 Proponents have moved for an order to amend the January 8, 2010 Order (Doc # 372) in order to
11
add four individuals to the “core group” defined in that Order. Proponents have so moved because
12
these persons should be included in the “core group” but were omitted from the January 7, 2010
13
Declaration of Ronald Prentice (“January 7 Declaration”) from which the Court, in part, derived the list
14

15 of names defining the core group.

16 This motion is based upon this Notice of Motion; the following Memorandum of Points and

17 Authorities; the concurrently filed declaration of Jesse Panuccio in support; the complete files in these
18
actions; the concurrently filed Motion to Amend and accompanying Declaration of Ronald Prentice;
19
argument of counsel; and such other and further matters as this Court may consider.
20
MEMORANDUM AND POINTS OF AUTHORITIES
21
Plaintiffs’ discovery requests implicate fundamental First Amendment rights. The Court’s
22

23 January 8 Order required a rolling production of documents not protected by the First Amendment

24 privilege. Under that Order, documents protected by that privilege are determined in part by the

25 identities of a Court-defined “core group” of persons who were involved with the “internal campaign
26
communications concerning the formulation of strategy and messages.’” Doc # 372, at 2 (quoting
27
Perry v. Hollingsworth, 09-17241 Slip Op at 36 n.12 (9th Cir. January 4, 2010)) (emphasis omitted). In
28
1
DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME
CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page4 of 5

1 order to determine which persons should be in the core group, the Court relied, in part, on the January 7
2 Declaration of Ronald Prentice, which provided a list of persons who Proponents argued met the
3
requirements for core-group status. However, as demonstrated in the Motion to Amend and the
4
concurrently filed Declaration of Ronald Prentice, some names of persons who fall within the core
5
group were omitted from the January 7 Declaration due to the extreme trial-preparation pressures on
6

7 Proponents and their counsel.

8 Because trial has already commenced, Proponents require immediate resolution of the Motion to

9 Amend so that documents falling within the First Amendment privilege are not produced as now
10 required by the January 8 Order and that valuable judicial and attorney time and resources are not
11
needlessly wasted dealing with documents that should not be produced or considered at trial.
12
Accordingly, Plaintiffs’ counsel were notified by email on January 17, 2010, of Proponents’ intention
13
to seek relief in the form of this motion to shorten time. See Decl. of Jesse Panuccio in Supp. of
14

15 Defendant-Intervenors’ Mot. to Shorten Time.

16 I. Substantial Prejudice Will Occur If The Time for A Hearing on the Motion to Amend Is
Not Shortened.
17
Federal Rule of Civil Procedure 6(e) allows the Court to order a motion to be heard on an
18

19 accelerated basis “for good cause.” Fed. R. Civ. P. 6(c)(1)(C). Moreover, N.D. Cal. Civ. L.R. 6-

20 3(a)(3) provides that a court may shorten time if “substantial harm or prejudice … would occur if the

21 Court did not change the time ….”

22
The Motion to Amend seeks to protect fundamental First Amendment rights under the standards
23
defined by the Ninth Circuit and this Court. Given the current trial schedule and the Court’s docket, if
24
the normal timeline for response and hearing on the Motion to Amend were not shortened the trial
25
would be over and the abridgment of the First Amendment privilege would have already occurred by
26

27 the time the Motion was heard. Given the narrow nature of the Motion to Amend and the familiarity of

28 legal counsel with the issue, no prejudice to Plaintiffs will occur if the motion to shorten time is
2
DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME
CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page5 of 5

1 granted.
2 CONCLUSION
3
For the foregoing reasons, Proponents respectfully request that the Court grant this motion to
4
shorten time.
5

6 Dated: January 18, 2010

7 COOPER AND KIRK, PLLC

8 ATTORNEYS FOR DEFENDANTS-INTERVENORS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
9 MARTIN F. GUTIERREZ, MARK A. JANSSON, AND
PROTECTMARRIAGE.COM – YES ON 8, A PROJECT
10 OF CALIFORNIA RENEWAL

11 By: /s/ Charles J. Cooper

12 Charles J. Cooper

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3
DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME
CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page1 of 8

1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (Ohio Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

8
LAW OFFICES OF ANDREW P. PUGNO
9 Andrew P. Pugno (CA Bar No. 206587)
andrew@pugnolaw.com
10 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 608-3065, Facsimile: (916) 608-3066
11
ALLIANCE DEFENSE FUND
12 Brian W. Raum (NY Bar No. 2856102)*
braum@telladf.org
13 James A. Campbell (OH Bar No. 0081501)*
jcampbell@telladf.org
14 15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: (480) 444-0020, Facsimile: (480) 444-0028
15
ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,
16 GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
and PROTECTMARRIAGE.COM – YES ON 8, A
17 PROJECT OF CALIFORNIA RENEWAL

18 * Admitted pro hac vice

19 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
20
KRISTIN M. PERRY, SANDRA B. STIER,
21 PAUL T. KATAMI, and JEFFREY J. CASE NO. 09-CV-2292 VRW
ZARRILLO,
22 DECLARATION OF
JESSE PANUCCIO
23 Plaintiffs,

24 v.
Judge: Chief Judge Vaughn R. Walker
25 ARNOLD SCHWARZENEGGER, in his official Magistrate Judge Joseph C. Spero
capacity as Governor of California; EDMUND
26
G. BROWN, JR., in his official capacity as
27 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
28 the California Department of Public Health and

DECLARATION OF JESSE PANUCCIO

CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page2 of 8

1 State Registrar of Vital Statistics; LINETTE

SCOTT, in her official capacity as Deputy
2 Director of Health Information & Strategic
Planning for the California Department of Public
3
Health; PATRICK O’CONNELL, in his official
4 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
5 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
6
Defendants,
7
and
8
PROPOSITION 8 OFFICIAL PROPONENTS
9 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
10 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
11 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
12
Defendant-Intervenors.
13

14
Additional Counsel for Defendant-Intervenors
15

16 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
17 tchandler@telladf.org
101 Parkshore Drive, Suite 100, Folsom, California 95630
18 Telephone: (916) 932-2850, Facsimile: (916) 932-2851
19 Jordan W. Lorence (DC Bar No. 385022)*
jlorence@telladf.org
20 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
21 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
22
* Admitted pro hac vice
23

24

25

26

27

28

DECLARATION OF JESSE PANUCCIO

CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page3 of 8

1 I, Jesse Panuccio, declare as follows:

2 1. I am an attorney licensed to practice law in the State of Florida and am admitted pro hac
3
vice in this case. I am an associate at Cooper & Kirk, PLLC, counsel of record for Defendant-
4
Intervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson, and
5
ProtectMarriage.com (“Proponents”). I make this declaration in support of Defendant-Intervenors’
6

7 Motion to Shorten Time. I have personal knowledge of the facts stated herein and could testify and

8 would testify competently thereto if called upon to do so.

9 2. After January 7, while reviewing documents for production in response to the Court’s
10 January 8, 2010 discovery order (Doc # 372) (hereinafter “January 8 Order”), Proponents’ and their
11
counsel realized that the names of four persons involved in ProtectMarriage.com’s internal
12
campaign strategy and messaging had been omitted from the January 7, 2010 Declaration of Ronald
13
Prentice (“January 7 Declaration) upon which the January 8 Order was based. Proponents have
14

15 thus moved the Court to amend the January 8 Order to include these for individuals in the “core

16 group.”

17 3. Given that production was ordered on an expedited schedule and is now complete save
18 for the documents on which the four individuals appear with other members of the “core group,”
19
Proponents believe expedited treatment of the Motion to Amend would serve the interest of all
20
parties and the Court.
21
4. Because the Court’s electronic filing system was not functioning from 5 p.m. on January
22

23 15, 2010, to 12:00 p.m. on January 18, 2010, and because no drop box at the courthouse was

24 available for manual filing during that period, Proponents could not file the motion to amend on the

25 Court’s docket during that period. Proponents served the motion on all parties by email, however,
26
on the morning of January 17 and informed the parties that they planned to file it with the Court as
27

28
1
DECLARATION OF JESSE PANUCCIO
CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page4 of 8

1 soon as a means of doing so became available. A true and correct copy of the email (reflecting
2 Eastern Standard Time) is attached as Exhibit A.
3
5. On the afternoon of January 17, 2010, I sent an email to counsel for the Plaintiffs and
4
Plaintiff-Intervenors requesting that they stipulate that they would respond to the motion to amend
5
by 12:00 p.m. on January 19, 2010, and consent to a hearing as soon as is practicable for the Court.
6

7 A true and correct copy of the email (reflecting Eastern Standard Time) is attached hereto as

8 Exhibit B. Counsel for Plaintiffs and Plaintiff-Intervenors did not respond to the email.

9 6. I am aware of three previous time modifications in this case. A stipulation was granted
10 to extend time for the Administration Defendants to serve and file their Answer to the Complaint in
11
Intervention. Doc # 170. The parties also entered into a joint stipulation to extend pretrial filing
12
deadlines. Doc # 266. The Court also granted Plaintiffs’ motion to shorten time for response to an
13
administrative motion to seal documents. Doc # 438.
14

15 7. I do not believe that the requested time modification would have any effect on the

16 schedule for this case.

17
I declare under penalty of perjury that the foregoing is true and correct. Executed this 18th
18

19 day of January, 2010.

20

21 By: /s/ Jesse Panuccio

22
Jesse Panuccio
23

24

25

26

27

28
2
DECLARATION OF JESSE PANUCCIO
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page5 of 8

EXHIBIT A
 Page 1 of 1
Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page6 of 8

Jesse Panuccio

From: Jesse Panuccio

Sent: Sunday, January 17, 2010 2:07 PM
To: Bailey, Landon; Bernstein, Erin; Bettan, Richard; Boutrous Jr., Theodore J.; Burns, Gordon;
Campbell, J; Chhabria, Vince; Chou, Danny; Chuck Cooper; Daly, Catheryn; Dettmer, Ethan D.;
Dusseault, Christopher D.; Flynn, Ronald; Goldman, Jeremy; Gosling, Kelcie M.; Janky, Mary;
Justice Lazarus, Rebecca; Kapur, Theane Evangelis; Knight, A; Kolm, Claude; Lee, Mollie;
Malzahn, Scott; Martinez, Judith; Martinez, Manuel; McGill, Matthew D.; Mennemeier, Kenneth
C.; Monagas, Enrique A.; Nicole Moss; Howard Nielson; Olson, Theodore B.; Pachter, Tamar;
Pete Patterson; Piepmeier, Sarah E.; Raum, Brian; Richardson, Beko; Schiller, Josh; Stewart,
Therese; Stroud, Andy; Tayrani, Amir C.; David Thompson; Uno, Theodore; Van Aken, Christine;
Washington, Brian; Whitehurst, Judy; Matsumura, Kaiponanea T; Moon, Gina
Subject: Perry v. Schwarzenegger, No. 09-2292
Attachments: 1-17-10 Mot. to Amend Jan. 8 Order FINAL.pdf; 1-17-10 REDACTED Prentice Decl. in Support of
Mot. to Amend FINAL.pdf; 1-17-10 Mot. to Seal FINAL.pdf; 1-17-10 Mot. to Seal -- Decl. in
Support FINAL.pdf; 1-17-10 Mot to Seal -- Proposed Order FINAL.pdf
Dear Counsel:

Attached to this email, please find copies of papers that Defendant-Intervenors plan to file with the Court
as soon as some means of doing so become available. The papers cannot be filed this morning
because the Court's ECF and email systems have been shut down and the Court has no accessible drop
box for manual filings on weekends or weeknights.

Regards,

Jesse

----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com

1/18/2010
Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page7 of 8

EXHIBIT B
 Page 1 of 1
Case3:09-cv-02292-JW Document476-1 Filed01/18/10 Page8 of 8

Jesse Panuccio

From: Jesse Panuccio

Sent: Sunday, January 17, 2010 6:17 PM
To: 'Dettmer, Ethan D.'; 'Justice Lazarus, Rebecca'; 'Flynn, Ronald'; 'Stewart, Therese'
Cc: Nicole Moss; andrew@pugnolaw.com
Subject: RE: Perry v. Schwarzenegger, No. 09-2292
Dear Counsel,

Defendant-Intervenors plan to file a motion to shorten time to respond to and hear Defendant-Intervenors'
motion to amend the Order of January 8, 2010, which was served earlier today and will be filed as soon
as there is some means of doing so. Defendant-Intervenors will propose that any response be filed by
noon on January 19, 2010, and that the Court hear the motion as soon as is practicable given the trial
schedule. Pursuant to Local Rule, Defendant-Intervenors are hereby seeking a stipulation to the motion
to shorten time. Please let me know as soon as possible whether you stipulate. We plan to file the
motion once the Court's ECF system or filing drop box are available.

Thank you,

Jesse

From: Jesse Panuccio

Sent: Sunday, January 17, 2010 2:07 PM
To: Bailey, Landon; Bernstein, Erin; Bettan, Richard; Boutrous Jr., Theodore J.; Burns, Gordon; Campbell,
J; Chhabria, Vince; Chou, Danny; Chuck Cooper; Daly, Catheryn; Dettmer, Ethan D.; Dusseault,
Christopher D.; Flynn, Ronald; Goldman, Jeremy; Gosling, Kelcie M.; Janky, Mary; Justice Lazarus,
Rebecca; Kapur, Theane Evangelis; Knight, A; Kolm, Claude; Lee, Mollie; Malzahn, Scott; Martinez,
Judith; Martinez, Manuel; McGill, Matthew D.; Mennemeier, Kenneth C.; Monagas, Enrique A.; Nicole
Moss; Howard Nielson; Olson, Theodore B.; Pachter, Tamar; Pete Patterson; Piepmeier, Sarah E.; Raum,
Brian; Richardson, Beko; Schiller, Josh; Stewart, Therese; Stroud, Andy; Tayrani, Amir C.; David
Thompson; Uno, Theodore; Van Aken, Christine; Washington, Brian; Whitehurst, Judy; Matsumura,
Kaiponanea T; Moon, Gina
Subject: Perry v. Schwarzenegger, No. 09-2292

Dear Counsel:

Attached to this email, please find copies of papers that Defendant-Intervenors plan to file with the Court
as soon as some means of doing so become available. The papers cannot be filed this morning
because the Court's ECF and email systems have been shut down and the Court has no accessible drop
box for manual filings on weekends or weeknights.

Regards,

Jesse

----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com

1/18/2010