Prop 8 federal trial update: Court names ‘Core Groups’ excluded from document order

Ted Olson and David Boies, the two famed straight attorneys mounting the federal challenge to Prop 8, were in New York City Wednesday night speaking at an invitation-only event moderated by New York Times Supreme Court correspondent Adam Liptak at The Times headquarters.  Before their talk, Olson and Boies spoke with Towleroad political director Corey Johnson and stressed that they believe they produced a “bullet proof” case before District Court Judge Vaughn Walker. (See video below)

Paul Schindler of Gay City News covered the talk before the audience of 100-150 people. Here’s an excerpt:

“When asked afterward whether his confidence at the district court level is about winning the general argument or more narrowly restoring the right to marry in California, Boies said he was uncertain, acknowledging that Walker might well reach a decision fashioned to survive review by the Ninth Circuit and the Supreme Court. Even at this first stage, then, politics are not absent from the judicial equation.”

Olson and Boies said they anticipate returning to the court for closing arguments either later this month or in April. However, there are still a number of matters to be settled, including continuing discovery issues. Last Friday, on March 5, U.S. Magistrate Joseph Spero ordered Equality California, Californians Against Eliminating Basic Rights, an ACLU campaign committee and the No on Prop 8 umbrella campaign to produce all documents “that contain, refer or relate to arguments for or against Proposition 8″ – though they may withhold private communications between their Core Group.  The order is similar to one Spero gave the ProtectMarriage/the Yes on 8 defendant-interveners.

The order – which can be read in full here –- notes how each of the groups identify their Core Group.

Californians Against Eliminating Basic Rights (CAEBR), for instance, was created by San Francisco City Attorney Dennis Herrera and Chad Griffin’s political consulting firm to raise funds and help with messaging for the No on Prop 8 campaign – including $500,00 from actor Brad Pitt. CAEBR declares that they have already complied with the order (see declaration here).

The court notes that Equality California Executive Director Geoff Kors argues that, because EQCA “is a nonparty and because it worked to oppose Proposition 8, its internal campaign communications are not relevant and production would be unduly burdensome. Doc #546 at 7- 10. The ACLU argues the documents proponents seek are irrelevant and privileged. Doc #543 at 11-18.”

Kors’ declaration to the court is here. Kors tells LGBT POV that, “We are still reviewing our options with counsel.”  UPDATE: KORS SAYS EQCA IS APPEALING SPERO’S RULING TO JUDGE WALKER.  SATURDAY UPDATE: JUDGE WALKER GRANTED A HEARING ON KOR’S MOTION OBJECTING TO SPERO’S COURT SCHEDULED FOR MARCH 16.

The deadline to produce the documents is March 31. That might significantly delay closing arguments if the order is appealed – though the court of appeals and even the US Supreme Court hae issued their decisions very quickly in this case.

In his order, Spero says:

“While the intent of those who voted against Proposition 8 is not relevant, the mix of information available to voters who supported Proposition 8 is relevant under FRCP 26 to the questions of intent and state interest. That mix of information includes arguments considered and ultimately rejected by voters, including arguments against Proposition 8. As was the case with the proponents, the documents and communications at issue may shed light on the meaning and impact of the messages that were sent to the voters. Thus, the subpoenaed documents are relevant and must be produced to the extent the documents are not privileged and contain, refer or relate to arguments for or against Proposition 8.”

The scope of the First Amendment privilege – as defined by the Ninth Circuit and clarified in a subsequent footnote – is:

“In the context of an initiative campaign, a campaign “private, organization may assert a First Amendment privilege over internal campaign communications concerning the formulation of campaign strategy and messages * * * among the core group of persons engaged in the formulation of campaign strategy and messages.” Id at 1165 n12 (emphasis in original). Despite the ACLU’s argument to the contrary, Doc #543 at 16, nothing in Perry limits footnote 12′s application to “the specific circumstance of the requests served by plaintiffs on Proponents and to the structure of the Yes on 8 campaign.” The footnote does not determine definitively who belongs in the core group of persons; instead, the footnote provides guidance for the court to make the final determination who is a member of a campaign organization’s core group. Id. That guidance is applicable to the instant dispute. Accordingly, the court will apply the First Amendment privilege to communications about strategy and messages internal to each No on 8 group’s core group. The privilege applies only to communications within a campaign organization — communications between or among independent campaign organizations are not covered by the First Amendment privilege.”

After a February 25 hearing on the issue, EQCA submitted a declaration defining the Core Group for the umbrella No on 8 – Equality for All campaign. That raised questions for Spero:

“(1) which individuals were sufficiently involved in the development of strategy and messages that they should be included in each organization’s core group; and (2) the application of the First Amendment privilege to the No on 8 groups.”

Spero credited these people as EQCA’s Core Group:

John Duran, Cary Davidson, Tim Hohmeier, Deb Kinney, Diane Abbitt, Jim Abbott, Dave Baron, Xavier Barrera, Brandon Brawner, Betsy Butler, Jody Cole, Larry Colton, Doug Dombek, Jeff Haber, Mike Hutcheson, Roslyn Jones, Tom Maddox, Shannon Minter, James Nguyen, Jeff Orr, Dennis Rasor, Jaime Rook, Rick Saputo, Linda Scaparotti, Eric Siddall, Alan Uphold (members of Equality California’s board of directors); Jean Adams, Ali Bay, Ian Barrera, Jim Carroll, Maya Scott-Chung, Liam Cooper,

Doug Flater, Joe Goldman, Daniel Gould, Kendra Harris, Ted Jackson, Kaitlin Karkos, Alice Kessler, Seth Kilbourn, Hannah Johnson, Geoff Kors, Erica Liscano, Shumway Marshall, Randy Medenwald, Miranda Meisenback, Trina Olson, Michelle Ortiz, Zorina Price, Leanne Pittsford, Jennifer Sample, George Simpson, Sean Sullivan, Sarah Tomastik and Clarence Williams (Equality California staff members engaged in the formulation of strategy and messages); and assistants to the named individuals acting on the named individuals’ behalves.”

Spero declined to include certain individuals associated with the Equality California Institute.

Spero OKed these people in Elizabeth Gill’s declaration for the ACLU’s Core Group:

“Elizabeth Gill, Paul Cates, Matthew Coles, Rebecca Farmer, Shayna Gelender, Maya Harris, Ashley Morris, Gigi Pandian, Skylar Porras, Catrina Roallos, Laura Saponara (employees of the ACLU who worked to defeat Proposition 8); and assistants to the named individuals acting on the named individuals’ behalves.”

Both Kors and the ACLU noted that Equality for All was formed in 2005 “to fight against any proposition that would limit marriage to opposite-sex couples.” The group originally include a coalition of about 35 organizations – “which registered Equality for All as a political action committee with the State of California. During the Proposition 8 campaign, Equality for All had an executive committee, a campaign committee and campaign staff.  Proponents did not serve Equality for All with a document subpoena.”

In a March 3 declaration, Kors identifies the “Equality for All executive committee, campaign committee, campaign staff and consultants” as its Core Group, but Spero said, did not identify the roles those individuals played. Spero wrote:

“Accordingly, the court lacks a basis to include these individuals in Equality for All’s core group, Spero said, while noting that the March 3 Kors declaration does “support through explanation” the inclusion of the campaign consultants and consulting firms. Thus Spero OKs the following as Equality for All’s Core Group:

Dale Kelly Bankhead, Heather Carrigan, Cary Davidson, Oscar de la O, Sue Dunlap, Michael Fleming, Patrick Guierrero, Maya Harris, Dan Hawes, Dennis Herrera, Delores Jacobs, Lorri L Jean, Kate Kendall, Geoff Kors, Steve Mele, Joyce Newstat, Tawal Panyacosit Jr, Rashad Robinson, Marty Rouse, Kevin Tilden and Andy Wong (the Equality for All executive committee); Steve Smith, Lilia Tamm, Molly Weedn and other employees of Dewey Square Group, LLC; Maggie Linden, Lindsey Nitta, Eddie Fernandez, Kris Hanson and other employees of Ogilvy Public Relations; Chad Griffin, Mark Armour and other employees of Amour Griffin Media Group, Inc; Kasey Perry and other employees of Perry Communications; Yvette Martinez and Javier Angulo of Progressive Strategy Partners LLC; Patrick Guerriero and James Dozier of Gill Action; Adam Freed; Joe Rodota; Guy Cecil; Rick Claussen; Gale Kaufman; Nick Donatiello; Phyllis Watts; Thalia Zepatos; Steve Mele and other employees of M L Associates LLC; Kimberly Ray; Marjan Philhour; Stephanie Berger and other employees of Berger Hirschberg; Shayna Elgin; Mary Pat Bonner and employees of The Bonner Group; John Gile; Thom Lynch; Larry Huynh and other employees of Blackrock Associates LLC; Alice Huffman of A C Public Affairs Inc; Wendy Liao and other employees of the I W Group; Justin Garrett and other employees of Logo Online/MTV Networks; Chris Nolan and other employees of Spot-On; Suzanne Stanford and other employees of Ofrenda; Eric Jaye of Storefront Political Media; David Binder and other employees of Binder Research; and Celinda Lake and other employees of Lake Associates; and assistants to the named individuals acting on the named individuals’ behalves.”

Spero goes on:

“The court has determined a core group for each No on 8 group as well as Equality for All and must now decide how to apply the First Amendment privilege to the relevant campaign communications. Communications solely within a No on 8 group’s core group are privileged under the First Amendment….For example, whether a communication between Geoff Kors and Maya Harris is privileged may depend on whether Geoff Kors was communicating in his Equality California or Equality for All capacity. But because the effort required by such an inquiry might amount to an undue burden on the No on 8 groups under FRCP 45(c)(1), the court will not require production of any communications about strategy and messages between core group members who belong to that core group, regardless of the capacity in which the core group member is communicating. Thus, members of the Equality for All core group may assert a privilege over responsive communications solely within the Equality for All core group – even if there is an argument that one of the parties to the communication was not participating in his or her capacity as a member of that particular core group.”

So the court finds that “the First Amendment privilege covers communications regarding strategy and messages within each No on 8 group’s core group as defined” but privilege does not cover communications between separate organizations.”

Because of the possible undue burden placed on third parties, the court also narrowed the discovery of electronic documents:

First, the No on 8 groups shall only be required to review electronic documents containing at least one of the following terms: “No on 8;” “Yes on 8;” “Prop 8;” “Proposition 8;” “Marriage Equality;” and “ProtectMarriage.com.”

Second, Equality California shall only be required to search its central email server for responsive electronic documents, identified in the March 3 declaration of Geoff Kors as the Microsoft Exchange email server….This restriction, however, does not apply to paper documents” – meaning the No on 8 groups must turn over paper documents that “contain, refer or relate to arguments for or against Proposition 8.”

I’m no lawyer so I may be reading this wrong  – but I did notice a few names missing from the approved lists – most notably David Bohnett, a primary donor to the No on Prop 8 campaign. Michael Fleming, who is named, works for the David Bohnett Foundation but I have a sneaking suspicion David may have emailed Geoff Kors directly from time to time. And while Lilia Tamm is named as protected in conjunction with Dewey Squares – Eden James and Julia Rosen from the Courage Campaign – who were so instrumental in organizing and operating BloggersAgaint8 – are not listed.

Indeed, this could lead to a whole other area of legal considerations –– ie to what extent, if any,  might privilege extend to bloggers who strategize with a political campaign?

Tagged as: Chad Griffin, Cory Johnson, Gay City News, gay marriage, Judge Spero, marriage equality, No on Prop 8, Paul Schindler, Prop 8 federal challenge, Towleroad