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OPPOSITION TO MOTION TO SHORTEN TIMEFOR RESPONSE AND HEARING ON MOTION TOCOMPEL COMPLIANCE WITH DOC SUBPOENAS

CASE NO. 09-CV-2292 VRW

LYNN H. PASAHOW (CSB NO. 054283)[email protected] CHANG (CSB NO. 217933)[email protected] KRAMER (CSB NO. 253313)[email protected] WHITTEMORE (CSB NO. 255432)[email protected] & WEST LLP555 California Street, Suite 1200San Francisco, CA 94104Telephone: (415) 875-2300Facsimile: (415) 281-1350

Attorneys for Third-Party Equality California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

KRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs,v.

ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUND G.BROWN, JR., in his official capacity as AttorneyGeneral of California; MARK B. HORTON, in his

official capacity as Director of the CaliforniaDepartment of Public Health and State Registrar ofVital Statistics; LINETTE SCOTT, in her officialcapacity as Deputy Director of Health Information &Strategic Planning for the California Department ofPublic Health; PATRICK OCONNELL, in hisofficial capacity as Clerk-Recorder for the County ofAlameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for theCounty of Los Angeles,

Defendants,and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J. KNIGHT,MARTIN F. GUTIERREZ, HAK-SHINGWILLIAM TAM, and MARK A. JANSSON; andPROTECTMARRIAGE.COM YES ON 8, APROJECT OF CALIFORNIA RENEWAL,

Defendant-Intervenors.

Case No. 09-CV-2292 VRW

EQUALITY CALIFORNIASOPPOSITION TO DEFENDANT-INTERVENORS MOTION TOSHORTEN TIME FOR RESPONSETO AND HEARING OF MOTIONTO COMPEL

Trial: January 11, 2010Judge: Chief Judge Vaughn R. WalkeLocation: Courtroom 6, 17th Floor

Case3:09-cv-02292-VRW Document491 Filed01/19/10 Page1 of 6
http://dockets.justia.com/http://docs.justia.com/cases/federal/district-courts/california/candce/3:2009cv02292/215270/491/http://dockets.justia.com/docket/court-candce/case_no-3:2009cv02292/case_id-215270/

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1 CASE NO. 09-CV-2292 VRW

INTRODUCTION

Without meeting and conferring as required by the Local Rules, Defendant-Intervenors

Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and

ProtectMarriage.com (Proponents) filed their Motion to Shorten Time for Response to and

Hearing of Motion to Compel (the Motion) against third party Equality California (EQCA)

on January 15, 2010. Rather than making any meaningful effort to reach an agreement with

EQCA on a shortened briefing schedule, less than eight hours before filing the motion Proponents

emailed EQCA with two options either (1) agree to an immediate production or (2) agree to file

an opposition to the motion to compel three non-business days later on Martin Luther King, Jr.

Daya federal holiday. Declaration of Leslie Kramer (Kramer Decl.) Ex. D. EQCA

responded that it was not in a position to prepare and file an opposition by Monday in light of the

federal holiday, but that it was willing to discuss the issue further. Kramer Decl. Ex. E.

Proponents sudden urgency and claimed prejudice comes in the middle of trialwell

after the close of discovery, ignoring the fact that they have been in possession of EQCAs

objections since September of last year. Rather than challenge EQCAs objections to the

subpoenas or even discussing the issue directly with EQCA while discovery was open,

proponents tactically opted not to and presumably only do so now because of an order compelling

the production of documents against it. Now during trial, Proponents seek to impose an

extremely burdensome schedule on several third parties including EQCA, despite the fact by their

own admission that such requests implicate thousands of relevant documents. Motion to

Compel at 5. As the close of discovery, as well as the deadline for compelling discovery, has

long passed, Proponents requests for additional, albeit irrelevant, documents from EQCA is

simply too late, and no good cause exists to justify such untimely requests.

While EQCA maintains that any urgency is entirely the result of Proponents own

decisions, it understands that this matter is in trial and that some abbreviated briefing schedule on

Proponents untimely motion to compel may be required. As such, EQCA proposes that, if the

Court determines that Proponents motion to compel should be heard, its opposition be filed with


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the Court on Monday, January 25 along with any other third party oppositions.1

STATEMENT OF FACTS

Proponents served their first subpoena on EQCA on August 27, 2009. Proponents

Exhibit to Motion to Compel (Dkt. # 472) (Prop. Ex.) 1. EQCA served its objections on

September 17, 2009 raising a number of objections and agreeing to produce all responsive, non-

privileged public documents in response to requests 1, 2, and 5-8. Prop. Ex. 4. EQCA explained

that non-public materials advocating against Proposition 8 cannot demonstrate why Proposition

8 was enacted, or on what basis it was enacted, and therefore such materials are not relevant to

any legal claim or defense, nor are they reasonably calculated to lead to the discovery of

admissible evidence. Id.

EQCA has been unequivocal in its position that non-public documents from a third party

opponent are not relevant to this dispute. As such, it has repeatedly explained to Proponents that

any discovery obligations of Proponents are not applicable to those of third party opponents, such

as EQCA. Kramer Decl. Exs. A, B. Wholly ignoring these objections, Proponents issued a

second, largely duplicative subpoena on November 16. Prop. Ex. 2. ECQA again objected on the

same grounds on November 23. Prop. Ex. 4. On December 8, 2009, EQCA produced all

relevant, non-privileged public documents in response to the subpoenas. Kramer Decl. 4, Ex.

C.

Then, after not hearing a word from Proponents in nearly two months, EQCA received a

letter on Tuesday, January 12 threatening to file a motion to compel two days later on January 14

unless EQCA identified its core group the next day and began an immediate rolling production.

Prop. Ex. 5. EQCA responded reiterating its earlier objections and offering to discuss the issue

further. Prop. Ex. 6. On Friday morning Proponents emailed EQCA now demanding that

production begin immediately or that EQCA stipulate to filing a response three days later on a

federal holiday. Kramer Decl. Ex. D. Again, EQCA responded by offering to discuss this matter

further and reminding Proponents that Monday was a holiday, but Proponents refused and instead

1Third Party ACLU filed its Opposition to Proponents Motion to Shorten Time on January 19

and proposed deadline of Monday, January 25 for its Opposition the Proponents Motion toCompel. Dkt. #488.


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filed their motions less than 30 minutes later. Kramer Decl. 6.

ARGUMENT

I. ANY PREJUDICE TO PROPONENTS IS MINIMAL AND CAUSED BYPROPONENTS OWN STRATEGIC DECISIONS

Proponents have not demonstrated the good cause required by Federal Rule 6, let alone

explained how they will suffer substantial harm or prejudice as required by Local Rule 6-3.

EQCA has already produced all responsive, non-privilegedpublic documents. Kramer Decl. 4.

As described by Proponents, the complete record includes the mix of information before and

available to the voters. Motion at 2. Accordingly, the only documents that could potentially

cause Proponents alleged prejudice relate to internal communications that could not possibly

have been before or available to the voters. As such, even as described by Proponents, all of

the relevant documents have been produced and no harm or prejudice can possibly result from

giving EQCA until Monday, January 25 to oppose the motion to compel.

Further, any harm or prejudice is the direct result of Proponents decision to delay

enforcement of third party subpoenas, while they resolved their own discovery obligations with

the Court. Proponents have been in possession of EQCAs objections since September and have

at no time directly addressed EQCAs arguments, let alone sought to enforce their subpoenas.

Proponents claim that they have kept the No on 8 groups continually apprised of both this

Courts and the Ninth Circuits rulings regarding the permissible scope of discovery in this case

is simply not the case. In reality, until last week, EQCA had not heard from Proponents in nearly

two months. Proponents attempt to explain the delay arguing that the Courts January 8 Order

applies to third party EQCA and excuses their decision to not enforce the subpoena. Motion at 2.

However, as previously explained to Proponents, orders addressing the discovery obligations of

party Proponents do not apply to third party opponents of Proposition 8 like EQCA. EQCA made

this exact argument in October, yet Proponents chose to ignore it until the middle of trial.

Accordingly, the urgency Proponents base their Motion on is entirely of their own creation and a

third party such as EQCA should not be subject to Proponents unreasonable scheduling

demands.


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II. PROPONENTS FAILED TO MEANINGFULLY MEET AND CONFER INVIOLATION OF THE LOCAL RULES

Pursuant to the local rules, Proponents must attempt to meet and confer before filing either

the Motion or the motion to compel. L.R. 6-3, 37-1(a). Despite this, Proponents have made no

attempt to meaningfully meet and confer on either motion. In nearly every communication sent

to Proponents, EQCA has agreed to discuss their objections and Proponents demands further.

Yet not once have Proponents sought to schedule a call or even directly respond to EQCAs

objections. Kramer Decl. 8. For this Motion, in particular, Proponents efforts to obtain a

stipulation are inadequate. Proponents contacted EQCA less than eight hours before filing the

Motion and demanded that EQCA either begin an immediate production or agree to a schedule

requiring EQCA to file an opposition three days later on a federal holiday. Kramer Decl. Ex. D.

Such attempts to reach an agreement on either this Motion or the motion to compel are

insufficient under the local rules, which specify that [t]he mere sending of a written, electronic,

or voice-mail communication, however, does not satisfy a requirement to meet and confer or to

confer. Rather, this requirement can be satisfied only through direct dialogue and discussion

either in a face to face meeting or in a telephone conversation. L.R. 1-5(n); see also Baker v.

County of Sonoma, No. 08-03433, 2010 WL 99088, at *1 (N.D. Cal. Jan. 6, 2010) (finding a letter

sent 24 hours before the deadline as insufficient); Williby v. City of Oakland, No. C-06-07385,

2007 WL 2900433, at *2 (N.D. Cal. Oct. 3, 2007) (communication in writing is specifically

insufficient to satisfy the meet and confer requirement). No such face to face meeting or

telephone conversation ever occurred, or was even attempted by counsel for Proponents. In light

of this gross failure to comply with the rules, requiring third party EQCA to submit to such a

limited schedule is particularly inappropriate.

CONCLUSION

Any harm or prejudice caused by allowing EQCA adequate time to respond to the motion

to compel is minimal and ultimately caused by the strategic decisions of Proponents. However,

given the fact that Proponents are now in the midst of trial, EQCA is willing to agree to submit its

opposition in less than the time permitted under the Local Rules, and it proposes that such


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opposition be filed by Monday, January 25, 2010nearly two weeks earlier than when it would

otherwise be due.

Dated: January 19, 2010 FENWICK & WEST LLP

By: /s/ Leslie A. KramerLeslie A. Kramer

Attorneys for Third Party, Equality California


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DECLARATION OF LESLIE KRAMER IN SUPPORTOF EQUALITY CALIFORNIAS OPPOSITION TOMOTION TO SHORTEN TIME


LYNN H. PASAHOW (CSB NO. 054283)[email protected] CHANG (CSB NO. 217933)[email protected] KRAMER (CSB NO. 253313)[email protected] WHITTEMORE (CSB NO. 255432)[email protected] & WEST LLP555 California Street, Suite 1200San Francisco, CA 94104Telephone: (415) 875-2300Facsimile: (415) 281-1350

Attorneys for Third-Party, Equality California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

KRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs,v.

ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUND G.BROWN, JR., in his official capacity as AttorneyGeneral of California; MARK B. HORTON, in his

official capacity as Director of the CaliforniaDepartment of Public Health and State Registrar ofVital Statistics; LINETTE SCOTT, in her officialcapacity as Deputy Director of Health Information &Strategic Planning for the California Department ofPublic Health; PATRICK OCONNELL, in hisofficial capacity as Clerk-Recorder for the County ofAlameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for theCounty of Los Angeles,

Defendants,and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J. KNIGHT,MARTIN F. GUTIERREZ, HAK-SHINGWILLIAM TAM, and MARK A. JANSSON; andPROTECTMARRIAGE.COM YES ON 8, APROJECT OF CALIFORNIA RENEWAL,

Defendant-Intervenors.

Case No. 09-CV-2292 VRW

DECLARATION OF LESLIEKRAMER IN SUPPORT OF THIRD-PARTY EQUALITY CALIFORNIASOPPOSITION TO DEFENDANT-INTERVENORS MOTION TOSHORTEN TIME FOR RESPONSETO AND HEARING OF MOTION

TO COMPEL

Trial: January 11, 2010Judge: Chief Judge Vaughn R. WalkeLocation: Courtroom 6, 17th Floor

Case3:09-cv-02292-JW Document491-1 Filed01/19/10 Page1 of 3

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I, Leslie Kramer, declare as follows:

1. I am an attorney admitted to practice before this Court. I am an associate at thelaw firm of Fenwick & West LLP, counsel of record for Third-Party Equality California

(EQCA), in this action. I have personal knowledge of the matters set forth herein and, if called

upon, could and would testify competently thereto.

2. On October 29, 2009, Carolyn Chang, counsel for EQCA, responded to JamesCampbells October 9 and 23 letters. Ms. Chang reiterated EQCAs formal objections served on

September 17, 2009 and explained that any change in the parties discovery obligations by the

Court would have no impact on EQCAs obligations to respond to the subpoena. A true and

correct copy of that letter is attached as Exhibit A.

3. On November 11, 2009, Ms. Chang sent another letter to Mr. Campbell inresponse to his October 29, 2009 letter. The letter further detailed EQCAs argument that the

documents sought were not relevant and that the requests were inappropriate given EQCAs

status as a third party. A true and correct copy of that letter is attached as Exhibit B.

4. On December 8, 2009, EQCA produced all responsive, non-privileged publicdocuments in response to Proponents subpoenas that were located after a good faith search. A

true and correct copy of the cover letter from that production is attached as Exhibit C.

5. On January 15, 2010, I received an email from Jesse Panuccio. Mr. Panucciodemanded that EQCA either begin an immediate production or stipulate to a briefing schedule

requiring EQCA to file an opposition on Monday, January 18. A true and correct copy of that

email is attached as Exhibit D.

6. Also on January 15, 2010, I responded to Mr. Panuccio pointing out that hisproposed schedule was unreasonable and that January 18 was a federal holiday. I also offered to

speak with him about this matter on the next business day. A true and correct copy of my January

15, 2010 email is attached as Exhibit E. I have not received a response from Mr. Panuccio, but he

sent me an email attaching the Proponents Motion to Shorten Time and Motion to Compel

shortly thereafter.

7. Even after the Proponents filed their motions, EQCA contacted Proponents about


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stipulating to a revised briefing schedule. Unfortunately, Proponents and EQCA could not come

to an agreement. A true and correct copy of that correspondence is attached as Exhibit F.

8. Upon information and belief, counsel for EQCA has never spoken withProponents counsel regarding EQCAs objections or the scope of the subpoenas.

9. Responding by Proponents immediate deadline of Monday, January 18 imposesan undue burden on EQCA, especially in light of Proponents failure to meaningfully confer on

this schedule. Because this matter is in the middle of trial, if the Court concludes that

Proponents Motion to Compel should be heard, EQCA proposes that it file its opposition by

Monday, January 25.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed this 19th day of January, 2010, in San Francisco, California.

________/s/ Leslie A. Kramer_____________Leslie A. Kramer


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Leslie Kramer

From: Jesse Panuccio [[email protected]]Sent: Friday, January 15, 2010 9:05 AMTo: Leslie KramerSubject: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)

Ms. Leslie Kramer, Esq.Fenwick & West, LLP555 California St., 12th FloorSan Francisco, CA 94104

January 15, 2010

BY EMAIL

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Ms. Kramer:

I write in follow up to Jim Campbells letter of January 12, 2010, and in response to your letter of January 13. The Court inPerryhas stated its intention to build a complete record in this case, Doc # 76 at 5, and has held that part of thiscomplete record is the mix of information before and available to the voters. Doc # 214 at 14. The Court has furtherdefined this mix of information as consisting of any document that contain[s], refer[s] or relate[s] to arguments for oragainst Proposition 8. Doc # 372 at 5. The subpoena that has been served on Equality Californiaissued out of theNorthern District of California, the Court that issued the above ordersseeks just such documents. See, e.g., RequestsNo. 1, 6, and 8.

Your correspondence to date indicates that Equality California is withholding such documents. Because trial is alreadyunderway and the need to build a complete record of the mix of information before and available to the voters ispressing, Defendant-Intervenors have no choice at this juncture but to file a motion to compel compliance with thesubpoena. Concurrent with that motion, Defendant-Intervenors plan to file an administrative motion to shorten time for

response to, and hearing on, the motion to compel. Defendant-Intervenors will propose that any response be filed by 5p.m. on January 18, 2010, and that the Court hear the motion as soon as possible given the dictates of the trial schedule.With respect to timeliness of this motion, Local Rule 26-2 states that a [d]iscovery cut off applies [u]nless otherwiseordered and that [d]iscovery requests that call for responses after the applicable discovery cut-off are not enforceableexcept by order of the Court for good cause shown. N.D. Cal. Civ. L.R. 26-2. Here, although the Court originally set adiscovery cut-off of November 30, 2009, seeDoc # 160 at 2, the Court just recently ruled on the scope of the FirstAmendment privilege and relevant discovery. SeeDoc # 372. Moreover, the Court has already permitted motions tocompel beyond the date established by L.R. 26-2, and it was just such a motion that resulted in the January 8 order. SeeDoc # 325 at 8 (seeking order compelling discovery and dated Dec. 28, 2009); Hrg of Jan. 6, 2010, Tr. at 7 (noting thatDoc # 325 seeks a compelling order); id. at 69 (noting that Plaintiffs filed what amounts to the motion to compel onthe 28th).

Pursuant to N.D. Cal. Civ. L.R. 6-3(a)(2), a party moving to shorten time must seek a stipulation to the time change. If youstipulate to the time change, please let me know. Additionally, if Equality California has reconsidered its position and willbegin an immediate rolling production, please let me know. If you believe further meet-and-confer will resolve thisdispute, I am available today at 202-220-9642--but, again, I note that Defendant-Intervenors must move forward promptlyon your prior representations that no additional documents will be produced.

Sincerely,

Jesse Panuccio

----------------------------


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Jesse PanuccioCooper & Kirk, PLLC1523 New Hampshire Ave., N.W.Washington, D.C. 20036Phone: (202) 220-9600Fax: (202) 220-9601www.cooperkirk.com


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Leslie Kramer

From: Leslie KramerSent: Friday, January 15, 2010 4:18 PMTo: 'Jesse Panuccio'Cc: Lauren WhittemoreSubject: RE: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)

Mr.Panuccio,

IwriteinresponsetoyourJanuary15email.

Tobeginwith,January18isafederalholiday. WethereforecannotstipulatetoanyschedulethatrequiresEquality

Californiatorespondinsuchalimitedtimeframe,letaloneonafederalholiday.

Additionally,youhavebeeninreceiptofourobjectionssinceSeptember17,2009. Atthattime,weobjectedfora

numberofreasons,includingonthegroundthatEqualityCaliforniasnonpublicmaterialsrelatingtoProposition8were

notrelevanttotheclaimsanddefensesinyourcase. Weagreedtoproduce,andhavesinceproduced,responsivenon

privilegedpublicdocumentsinresponsetorequestsnumbers1,6and8. Asyouknow,ourobjectionshavebeen

reiteratedbyusnumeroustimes,includinginEqualityCalifornia'sobjectionsservedonNovember23toyoursecond

largelyduplicativesubpoena. Assuch,youhavehadmonths,includingasubstantialamountoftimebeforethecloseof

discovery,toaddresstheseissuesthroughthemeetandconferprocessandamotiontocompeltotheextentyou

deemedonenecessary. Instead,youdecidedtodonothinginresponsetoourobjectionsandnowallofasudden

expectustobeginanimmediaterollingproductionorelsecommittoathreedaybriefingscheduleoveraholiday

weekend. Furthermore,LocalRule262requiresthatyoudemonstrategoodcauseinordertofileamotiontocompel

afterthecloseofdiscoverywhichyouremailfailstodo. Pleaseexplainthegoodcauseforwhyyouwaitedtoraisethis

issueuntilmidtrialandafterthecloseofdiscovery,whenyouobviouslycouldhavemovedforanorderregardingthe

scopeofdiscoveryinthetimepermittedtotheextentyoudisagreedwithourobjections. Wereiteratethatthe

court'sJanuary8order,whichaddressesthescopeofproponent'sFirstAmendmentprivilege,doesnotaddressour

objections,explainyourdelayorgiveyoutherighttoundulyburdenanonparty.

As

always,

I

am

happy

to

discuss

this

matter

further

and,

to

that

end,

am

generally

available

Tuesday

afternoon

for

a

call

L E S L I E K R A M E R

Fenwick & West LLP

Associate, Litigation Group

(415) 875-2396

(415) 281-1350

[email protected]

From: Jesse Panuccio [mailto:[email protected]]Sent: Friday, January 15, 2010 9:05 AMTo: Leslie KramerSubject: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)

Ms. Leslie Kramer, Esq.Fenwick & West, LLP555 California St., 12th FloorSan Francisco, CA 94104


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January 15, 2010

BY EMAIL

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Ms. Kramer:

I write in follow up to Jim Campbells letter of January 12, 2010, and in response to your letter of January 13. The Court inPerryhas stated its intention to build a complete record in this case, Doc # 76 at 5, and has held that part of thiscomplete record is the mix of information before and available to the voters. Doc # 214 at 14. The Court has furtherdefined this mix of information as consisting of any document that contain[s], refer[s] or relate[s] to arguments for oragainst Proposition 8. Doc # 372 at 5. The subpoena that has been served on Equality Californiaissued out of theNorthern District of California, the Court that issued the above ordersseeks just such documents. See, e.g., RequestsNo. 1, 6, and 8.

Your correspondence to date indicates that Equality California is withholding such documents. Because trial is alreadyunderway and the need to build a complete record of the mix of information before and available to the voters ispressing, Defendant-Intervenors have no choice at this juncture but to file a motion to compel compliance with thesubpoena. Concurrent with that motion, Defendant-Intervenors plan to file an administrative motion to shorten time forresponse to, and hearing on, the motion to compel. Defendant-Intervenors will propose that any response be filed by 5p.m. on January 18, 2010, and that the Court hear the motion as soon as possible given the dictates of the trial schedule.

With respect to timeliness of this motion, Local Rule 26-2 states that a [d]iscovery cut off applies [u]nless otherwiseordered and that [d]iscovery requests that call for responses after the applicable discovery cut-off are not enforceableexcept by order of the Court for good cause shown. N.D. Cal. Civ. L.R. 26-2. Here, although the Court originally set adiscovery cut-off of November 30, 2009, seeDoc # 160 at 2, the Court just recently ruled on the scope of the FirstAmendment privilege and relevant discovery. SeeDoc # 372. Moreover, the Court has already permitted motions tocompel beyond the date established by L.R. 26-2, and it was just such a motion that resulted in the January 8 order. SeeDoc # 325 at 8 (seeking order compelling discovery and dated Dec. 28, 2009); Hrg of Jan. 6, 2010, Tr. at 7 (noting thatDoc # 325 seeks a compelling order); id. at 69 (noting that Plaintiffs filed what amounts to the motion to compel onthe 28th).

Pursuant to N.D. Cal. Civ. L.R. 6-3(a)(2), a party moving to shorten time must seek a stipulation to the time change. If youstipulate to the time change, please let me know. Additionally, if Equality California has reconsidered its position and will

begin an immediate rolling production, please let me know. If you believe further meet-and-confer will resolve thisdispute, I am available today at 202-220-9642--but, again, I note that Defendant-Intervenors must move forward promptlyon your prior representations that no additional documents will be produced.

Sincerely,

Jesse Panuccio

----------------------------Jesse PanuccioCooper & Kirk, PLLC1523 New Hampshire Ave., N.W.Washington, D.C. 20036

Phone: (202) 220-9600Fax: (202) 220-9601www.cooperkirk.com


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Leslie Kramer

From: Jesse Panuccio [[email protected]]Sent: Tuesday, January 19, 2010 12:37 PMTo: Leslie KramerCc: Lauren Whittemore; Nicole MossSubject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No.

09-2292 (N.D. Cal.)

Ms. Kramer,We cannot stipulate to January 25.Thank you,JesseFrom: Leslie Kramer [mailto:[email protected]]

Sent: Tuesday, January 19, 2010 3:14 PM

To: Jesse PanuccioCc: Lauren Whittemore; Nicole MossSubject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)

AfterconsultingwiththeotherthirdpartiesandlearningthattheACLUhasproposedMonday,January25asadeadlineforrespondingtothemotiontocompel,wefeelit'smostefficientforallthirdpartiestorespondtothemotiontocompelonthesameday. Accordingly,wewillbeaskingthecourtforthesamedeadline. Basedonyourpreviousrepresentations,weassumethatdateisnotacceptabletoyou. If,however,youwillagreetothatschedule,pleaseletusknowimmediately. Otherwise,wewillgoforwardwithourOppositiontotheMotiontoShortenTime.From: Jesse Panuccio [mailto:[email protected]]

Sent: Monday, January 18, 2010 2:37 PMTo: Leslie Kramer

Cc: Lauren Whittemore; Nicole MossSubject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)Ms. Kramer,Thank you for your email. We would be willing to stipulate that the opposition to the motion be filed by the ECF deadlineon Wednesday (essentially midnight on Wednesday).Regards,JesseFrom: Leslie Kramer [mailto:[email protected]]Sent: Monday, January 18, 2010 2:00 PMTo: Jesse PanuccioCc: Lauren WhittemoreSubject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)

WeintendtoopposeyourMotiontoShortenTimeonTuesdaypursuanttothelocalrules. WillyoustipulatetoouroppositiontothemotiontocompelbeingfiledThursday,January21?


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From: Jesse Panuccio [mailto:[email protected]]

Sent: Friday, January 15, 2010 4:43 PMTo: [email protected]; [email protected]; Leslie KramerSubject: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)Dear Counsel,Please see the attached motions, which were just filed in, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.). Exhibits tothe motion to compel will be attached in a follow-on email.Regards,Jesse Panuccio----------------------------Jesse PanuccioCooper & Kirk, PLLC1523 New Hampshire Ave., N.W.Washington, D.C. 20036Phone: (202) 220-9600Fax: (202) 220-9601www.cooperkirk.com-------------------------------------------IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S.federal tax advice in this communication (including attachments) is not intended or written by Fenwick & West LLP to beused, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting,marketing, or recommending to another party any transaction or matter addressed herein.

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3:09-cv-02292 #491