Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page1 of 5

1 DENNIS J. HERRERA, State Bar #139669

City Attorney
2 THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
4 RONALD P. FLYNN, State Bar #1841867
VINCE CHHABRIA, State Bar #208557
5 ERIN BERNSTEIN, State Bar #231539
CHRISTINE VAN AKEN, State Bar #241755
6 MOLLIE M. LEE, State Bar #251404
Deputy City Attorneys
7 City Hall, Room 234
One Dr. Carlton B. Goodlett Place
8 San Francisco, California 94102-4682
Telephone: (415) 554-4708
9 Facsimile: (415) 554-4699

10 Attorneys for Plaintiff-Intervenors

CITY AND COUNTY OF SAN FRANCISCO
11

12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW (JCS)
15 PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, PLAINTIFF-INTERVENOR’S EMERGENCY
16 MOTION TO CORRECT PROTECTIVE
Plaintiffs, ORDER [DOCKET NO. 361]
17
vs.
18 Hearing Date: Jan. 6, 2010
ARNOLD SCHWARZENEGGER, in his Hearing Judge: Honorable J.C. Spero
19 official capacity as Governor of California;
EDMUND G. BROWN JR., in his official Trial Date: Jan. 11, 2010
20 capacity as Attorney General of California;
MARK B. HORTON, in his official capacity
21 as Director of the California Department of
Public Health and State Registrar of Vital
22 Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health
23 Information & Strategic Planning for the
California Department of Public Health;
24 PATRICK O'CONNELL, in his official
capacity as Clerk-Recorder for the County of
25 Alameda; and DEAN C. LOGAN, in his
official capacity as Registrar-Recorder/County
26 Clerk for the County of Los Angeles,

27 Defendants.

28
Motion to Correct Protective Order
CASE NO. 09-CV-2292 VRW (JCS)
 Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page2 of 5

1 and
2 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
3 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
4 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
5 RENEWAL,
6 Defendant-Intervenors.
7
PROPOSITION 8 OFFICIAL PROPONENTS
8 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
9 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
10 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
11
Defendant-Intervenors.
12

13 CITY AND COUNTY OF SAN FRANCISCO,

14 Plaintiff-Intervenor
15 vs.
16 ARNOLD SCHWARZENEGGER, in his official
capacity as Governor of California; EDMUND G.
17 BROWN JR., in his official capacity as Attorney
General of California; MARK B. HORTON, in
18 his official capacity as Director of the California
Department of Public Health and State Registrar
19 of Vital Statistics; and LINETTE SCOTT, in her
official capacity as Deputy Director of Health
20 Information & Strategic Planning for the
California Department of Public Health,
21
Defendants.
22

23

24

25

26

27

28
Motion to Correct Protective Order
CASE NO. 09-CV-2292 VRW (JCS)
 Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page3 of 5

1 Plaintiff-Intervenor City and County of San Francisco hereby submits this motion to correct the

2 protective order issued in this matter [Doc. # 361] to conform to the Court’s oral ruling on that

3 protective order at the hearing on January 6, 2010. Specifically, San Francisco seeks to correct

4 paragraph 7.3(a) to allow San Francisco and any other government office to identify attorneys and

5 individuals that will have access to documents marked “Highly Confidential – Attorneys’ Eyes Only”

6 by changing the term “Receiving Party’s Outside Counsel of record in this action” to “Receiving

7 Party’s Counsel of record in this action.” The restriction to outside counsel would categorically

8 exclude government attorneys, who necessarily work for the government entity they represent.

9 San Francisco raised this issue on December 3, 2009, when it wrote the Court and requested

10 the change from "outside counsel" to "counsel" in the then-proposed protective order submitted by

11 Plaintiff’s. [Doc. # 273.] While Defendant-Intervenor Proposition 8 Proponents sought to exclude

12 any access to such documents by San Francisco, San Francisco requested the change to allow

13 attorneys in the San Francisco City Attorneys’ Office who are working on the matter and otherwise

14 meet the criteria as set out the protective order to gain access to the documents in this matter. [Id.]

15 Plaintiff joined in the request. [Id. at 2.]

16 The Court held a hearing on January 6, 2010 to discuss, among other things, the terms the

17 protective order. On this specific issue (access to documents marked “Highly Confidential –

18 Attorneys’ Eyes Only”), the Court provided additional protection by requiring that as to any attorney

19 or employee to whom such documents would be provided under paragraph 7.3(a), that “notice of all

20 such attorneys and employees to whom highly confidential attorney's eyes only information will be

21 disclosed shall be given not less than 24 hours in advance of the disclosure to give the other parties the

22 opportunity to object to the disclosure on grounds specific to the designated employee or attorney.”

23 [Exhibit A, Transcript at 100:7-101:9.] Plaintiffs agreed to that extra protection. [Id. at 101:10-11.]

24 Plaintiffs then specifically raised the issue of access to such documents by San Francisco. [Id. at 101:

25 11-14] The Court denied Defendant-Intervenor Proposition 8 Proponents’ request that the City

26 Attorneys’ Office be categorically denied access to the documents, and indicated that the City

27 Attorney's office should follow the same confidentiality procedures established for the other parties.

28 [Id. at 101:15-102:5.] Defendant-Intervenors submitted to the order. [Id. at 102:16-19.]

Motion to Correct Protective Order 1
CASE NO. 09-CV-2292 VRW (JCS)
 Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page4 of 5

1 To conform paragraph 7.3 (a) to the Court’s express ruling at the hearing, San Francisco

2 requests that the Court amend paragraph 7.3(a) as follows:

3 the Receiving Party’s Counsel of record in this action, as well as employees of

said Counsel to whom it is reasonably necessary to disclose the information for
4 this litigation and who have signed the “Agreement to Be Bound by Protective
Order” that is attached hereto as Exhibit A, provided that it shall not be
5 provided to any Counsel or employee who held an “official position” in any
primarily formed ballot committee related to Proposition 8 (see http://cal-
6 access.ss.ca.gov/campaign/measures/detail.aspx?id=1302602&session=2007) or
now holds an official position in a similar committee that is now circulating
7 petitions for a 2010 ballot initiative to repeal Proposition 8. For purposes of this
sections 7.3 and 7.5 an “official position” is defined as one which authorizes the
8 holder of said position to contractually bind (either solely or in conjunction with
others) the primarily formed ballot committee (or similar committee circulating
9 petitions to place an initiative on the 2010 ballot) with respect to matters
relating to communications disseminated by the committee or otherwise to
10 spend funds exceeding $1,000 on behalf of the committee, provided however,
that notice of all such attorneys and employees to whom HIGHLY
11 CONFIDENTIAL - ATTORNEY'S EYES ONLY information will be disclosed
shall be given not less than 24 hours in advance of the disclosure to give the
12 other parties the opportunity to object to the disclosure on and seek relief from
the court on grounds specific to the designated attorney or employee;
13

14 Because the Court’s order contemplated that San Francisco would provide notice the names of

15 individuals to whom information will be disclosed, and in order to avoid any delay, San Francisco is

16 doing so in anticipation of an amended order being entered.

17 San Francisco circulated a copy of a draft of this motion, with Exhibit A, to the parties on the

18 morning of January 8, 2010. Plaintiffs and the Attorney General support the request. The Alameda

19 County Clerk-Recorder, the County of Los Angeles, and Administration Defendants have stated that

20 they have position on the request. Defendant-Intervenors have not provided their position.

21

22

23

24

25

26

27

28
Motion to Correct Protective Order 2
CASE NO. 09-CV-2292 VRW (JCS)
 Case3:09-cv-02292-VRW Document393 Filed01/09/10 Page5 of 5

1
Dated: January 8, 2010 DENNIS J. HERRERA
2 City Attorney
THERESE M. STEWART
3
Chief Deputy City Attorney
4 DANNY CHOU
Chief of Complex & Special Litigation
5 RONALD P. FLYNN
VINCE CHHABRIA
6 ERIN BERNSTEIN
CHRISTINE VAN AKEN
7 MOLLIE M. LEE
Deputy City Attorneys
8

9 By: /s/
10 RONALD P. FLYNN

11 Attorneys for Proposed Intervenor

CITY AND COUNTY OF SAN FRANCISCO
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Motion to Correct Protective Order 3
CASE NO. 09-CV-2292 VRW (JCS)
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page1 of 11

1 DENNIS J. HERRERA, State Bar#139669

City Attorney
2 THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
4 RONALD P. FLYNN, State Bar #1841867
VINCE CHHABRIA, State Bar #208557
5 ERIN BERNSTEIN, State Bar #231539
CHRISTINE VAN AKEN, State Bar #241755
6 MOLLIE M. LEE, State Bar #251404
Deputy City Attorneys
7 City Hall, Room 234
One Dr. Carlton B. Goodlett Place
8 San Francisco, California 94102-4682
Telephone: (415) 554-4708
9 Facsimile: (415) 554-4699

10 Attorneys for Plaintiff-Intervenors

CITY AND COUNTY OF SAN FRANCISCO
11

12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-C V-2292 VRW (JCS)
15 PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, DECLARATION OF RONALD P. FLYNN IN
16 SUPPORT OF PLAINTIFF-INTERVENOR’S
Plaintiffs, EMERGENCY MOTION TO CORRECT
17 PROTECTIVE ORDER [DOCKET NO. 3611
vs.
18
ARNOLD SCHWARZENEGGER, in his Hearing Date: Jan. 6, 2010
19 official capacity as Governor of California; Hearing Judge: Honorable J.C. Spero
EDMUND G. BROWN JR., in his official
20 capacity as Attorney General of California; Trial Date: Jan. 11, 2010
MARK B. HORTON, in his official capacity
21 as Director of the California Department of
Public Health and State Registrar of Vital
22 Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health
23 Information & Strategic Planning for the
California Department of Public Health;
24 PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the County of
25 Alameda; and DEAN C. LOGAN, in his
official capacity as Registrar-Recorder/County
26 Clerk for the County of Los Angeles,

27 Defendants.

28
Motion to Correct Protective Order
CASE NO. o9-Cv-2292 vRW (JCS)
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page2 of 11

I and
2 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS I-IOLLINGS WORTH. GAIL J.
3 KNIGHT, MARTIN F. GUTIERREZ. 1-IAK-
SHING WILLIAM TAM, and MARK A.
4 JANSSON; and PROTECTMARRIAGE.COM
YES ON 8, A PROJECT OF CALIFORNIA
5 RENEWAL,
6 Defendant-Intervenors.
7
PROPOSITIONS OFFICIAL PROPONENTS
8 DENNIS HOLLINGS WORTH. GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, flAK-
9 SH[NG WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM -

10 YES ON 8, A PROJECT OF CALIFORNIA

RENEWAL.
11
Defendant-Intervenors.
12

13 CITY AND COUNTY OF SAN FRANCISCO,

14 Plaintiff-Intervenor
15 vs.
16 ARNOLD SCHWARZENEGGER. in his official
capacity as Governor of California; EDMUND G.
17 BROWN JR., in his official capacity as Attorney
General of California; MARK B. HORTON, in
18 his official capacity as Director of the California
Department of Public Health and State Registrar
19 of Vital Statistics; and LINETTE SCOTT, in her
official capacity as Deputy Director of Health
20 Information & Strategic Planning for the
California Department of Public Health,
21
Defendants.
22

23

2.

25

26

27

28
Motion to Correct Protective Order
CASE NO. 09-C V-2292 VRW (JCS)
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page3 of 11

DECLARATION OF RONALD P. FLYNN

2 1. Ronald P. Flynn, declare as follows:

3 1. I am a Deputy City Attorney for the City and County of San Francisco and one of the

4 attorneys of record for the defendants in this action. I am licensed to practice law in the state of

5 California and before this Court. Except where noted, the following is within my personal knowledge

6 and, if called, I could and would testify competently with respect thereto.

7 2. Attached as Exhibit A to this declaration is excerpts of a true and correct copy of the

8 transcript of the hearing in this matter on January 6, 2010.

9 3. On January 8. 2010, I circulated a copy of a draft of this motion, with Exhibit A, to the

10 parties at 9:15 am. Counsel for Plaintiffs and the Attorney General have written me and stated that

11 they support the request. Counsel for The Alameda County Clerk-Recorder, the County of Los

12 Angeles, and Administration Defendants have written me and stated that they have position on the

13 request. Defendant-Intervenors have not provided their position.

14 1 declare under penalty of perjury under the laws of the state of California that the foregoing is

15 true and correct. Executed this 9th day of January, 2010, at San Francisco, California.

16

17 Ronald P. Flynn
18

19

20

21

22

23

24

25

26

27

28
Motion to Correct Protective Order 1
CASE NO. o9-cv-2292 VRW (JCS)
Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page4 of 11

EXHIBIT A
Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page5 of 11

Pages 1 - 126

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE JOSEPH C. SPERO, MRGISTRATE

KRISTIN M. PERRY,
SANDRA B. STIER, PAUL T. KATAI4I,
and JEFFREY J. ZARRILLO,

Plaintiffs.

vs. ) NO. C 09-2292-VRW

ARNOLD SCHWARZENEGGER, in his

official capacity as Governor of
California; EDMUND G. BROWN, JR.,
in his official capacity as
Attorney General of California
1
MARK B. HORTON, in his official
capacity as Director of the
California Department of Public
Health and State Registrar of
Vital Statistics; LINETTE SCOfl,
in her official capacity as Deputy
Director of Health Information &
Strategic Planning for the
California Department of Public
Health; PATRICK O’CONNELL, in his
official capacity as
Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his
official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
)San Francisco, California
Defendants. ) Wednesday
January 6, 2010

TRANSCRIPT OF PROCEEDINGS

ReponcdByv Debra L. Pas C5R 11914 CR1?, RMI? RI’)?

OflkJd Reporter- US District Court
Computerized Tnwsenption ‘ Echace

Debra £. ‘Fat, CS€. C tR4MQ, Rfl

Offlcidçponer VS. District Coini San !Francisco, CalIfornia
- -

(415)431-1477
Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page6 of 11

APPEARANCES:

For Plaintiffs: GIBSON, DUNN & CRUTCI-TER, LLP

1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: MRTTEEW D. MCGILL, ESQUIRE

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue
Los Angeles, California 90071-3197
BY: ThEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE

GIBSON DUNN & CRUTCHER LLP

1
555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE

BOlES, SCuLLER & FLEXNER LLP

1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE

For Plaintiff- CITY AND COUNTY OF SAN FRANCISCO

Intervenor: OFFICE OF TIlE CITY ATTORNEY
One Drive Canton B. Goodlett Place
San Francisco, California 94102-4682
BY: DAZ4NY CHOU, DEPUTY CITY ATTORNEY

For Defendant MENNEMEIER, GLASSMAN & STROU])

Gov. Schwarzenegger: 980 9th Street, Suite 1700
Sacramento, California 95814-2736
By: A1OREW WALTER STROUD, ESQUIRE

For Defendant STATE ATTORNEY GJERAL’S OFFICE

Edmund G. Brown Jr.: 455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102-7004
BY: TAMAR PACHTER, DEPUTY ATTY GENERAL

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

Debra £ ‘PaL CSt CW tM. cRfl

OffciaNijporter US. Viarkt Court San !Fraucisco, Qa4fornia
- -

(415) 431-1477
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page7 of 11

1 APPEARANCES (CONTINUED):

2 For Defendant- COOPER & KIRK

Intervenors: 1523 New Hampshire Avenue, N.W.
3 washington, D.C. 20036
BY: MICHAEL W. KIRK, ESQUIRE
4 JESSE PANUCCIO, ESQUIRE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Debra C. Q’aL CSR, C ‘Rfl fl

OfficidRcpotier VS. Distrtt Ccu’t San Franthco, Cafifornia
- -

(415) 431-1477
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page8 of 11

100

1 haven’t given my court reporter a break. So before I get in

2 too much trouble, let’s take a five-minute recess.

3 (whereupon there was a recess in the proceedings

4 from 3:49 p.m. until 3:58 p.m.)

S THE CLERK: Recalling C 09-2292, Kristin Perry

6 versus Arnold Schwarzenegger.

— 7 THE COURT: So the next thing I want to take brief

8 argument on is the protective order, so you can produce these

9 documents under whatever level of protection that you think

10 is appropriate.

11 So we have got the proposed protective orders from

12 both sides and the arguments. What I was thinking of doing

13 is entering a form of protective order that is essentially

14 the form proposed by the plaintiffs, except with respect to

15 Paragraph 7.3(a) and (b) adding the following qualification:

16 “provided, however, that notice of all

17 such attorneys and employees to whom highly

18 confidential attorney’s eyes only information

19 will be disclosed shall be given not less

20 than 24 hours in advance of the disclosure to

21 give the other parties the opportunity to

22 object to the disclosure on grounds specific

23 to the designated employee or attorney.”

24 The idea being, I mean, you get this list and if

25 there is someone on there that you have a particular issue

I
V ‘Deôra L. eas, Cfl CflA
Officidw.çponer V4 Vis:nct Court San francisco, CalIf ruth
-
-

(415) 431-1477
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page9 of 11

101

1 with, you have an opportunity to come to at least -- you

2 raise your objection. If you don’t get satisfaction, do an

3 emergency application for the Court saying don’t apply --

4 don’t let that person see those documents

S I picked 24 hours -- I would normally have picked a

6 further, a longer period of time -- because we don’t have

7 very much time.

8 So that was my thought on that, but I would hear

9 from anyone on the protective order.

10 MR. BOtrrROUs: Your Honor, I think that sounds

11 fine. The one issue I would flag on the Court’s addition is

12 I think the proponents had objected to anyone from the City

13 of San Francisco having any access to the documents, and we

14 would object to that.

15 ThE COURT: No. I’m not going to -- I’m going to

16 reject that as a general proposition. The city attorney’s

17 office will be allowed to identify those individuals and the

18 office that they are going to have access to these documents.

19 If there are particular problems with those specific

20 individuals that you -- the defendant-intervenors have

21 evidence of and want to make an application to the Court as

22 to those particular individuals, but just because one works

23 for the city attorney, that’s not sufficient.

24 The city attorney’s office, I must say, has worked

25 in this Court and with this Court on many cases, many cases

Debra L Pas, CS€ CW9 lfl fl

ç\7 Qfficth(ppo4er- U.S. ‘District Court -San !Franthco, Cailfirnia
(415) 431-1477
 Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page10 of 11

102

1 involving highly confidential matters, and I have always

2 found their lawyers supremely ethical and I have no doubt

3 they will treat this ethically.

4 On the other hand, if there is some specific

5 evidence as to an individual, I want to hear about that.

6 . BOUTROUS: Your Honor, once the protective

7 order is issued, will it be possible for us to get a copy of

S the Prentice declaration just so we can see - - pursuant to

9 the protective order, so we can see who is on there?

10 THE COURT: I havenrt thought through all the

11 implications on that. That was submitted with the

12 understanding that it be in camera. I’m not sure that it

13 would be provided to you. You would have to separately

14 address that. I can’t address it on the fly.

15 MR. BOUTROUS: Okay, your 1-lonor. Thank you.

16 THE COURT: Did you want to say anything about the

17 protective order?

18 MR. KIRK: We will rest. We thought ours was

19 better, but - -

2O THE COURT: Yours was quite good. It was quite

21 good. It’s a hard -- there is no absolutely right and wrong

22 there. So I’m going to hand to my courtroom deputy...

23 (whereupon, document was tendered

24 to the courtroom deputy.)

25 THE COURT: So, hopefully, that will get out

Deöra £. as, cs. Cw tii

Officid’Rsporur- VS. District Court -San raacisco, Catifàmia
(415) 431-1477
Case3:09-cv-02292-JW Document393-1 Filed01/09/10 Page11 of 11

127

CERTIFICATE OF REPORTER

I, DEBRA L. PAS, Official Reporter for the United

States Court, Northern District of California, hereby certify

that the foregoing proceedings in C 09-2292 VRW, KRISTIN

PERRY, et al, vs ARNOLD SCI-IWARZENEGGER, et al were reported

by me, a certified shorthand reporter, and were thereafter

transcribed under my direction into typewriting; that the

foregoing is a full, complete and true record of said

proceedings as bound by me at the time of filing.

The validity of the reporter’s certification of said

transcript may be void upon disassembly and/or removal

from the court file.

/s/ Debra L. Pas

Debra L. Pas, CSR 11916, CRR RMR, RPR

Thursday, January 7, 2010

De6raL’Pas, CS,Ofl. Rfl

Officth(cR,poner VS. District Court San Trancisco, California
- -

(415) 431-1477