Karen Ocamb

Judge Walker Rules EQCA and ACLU Must Turn Over Documents in Federal Prop 8 Trial

Filed By Karen Ocamb | March 23, 2010 5:30 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: Equality California, federal Prop 8 trial, Geoff Kors, Judge Vaughn Walker, Lisa Leff

InJudge-Walker-1.jpg a 24-page ruling issued Monday afternoon, Judge Vaughn Walker denied motions by the ACLU and Equality California to overrule an order to turn No on Prop 8 campaign documents to Prop 8 proponents in the federal Prop 8 trial.

Tuesday morning the ACLU and EQCA filed a motion to stay the order and Judge Walker's ruling pending their appeal to the 9th Circuit Court of Appeals.

Read more about the motion to stay, the original order and excerpts from Judge Walker's ruling below the fold.

Equality California Executive Director Geoff Kors issued the following statement regarding the motion to stay the order:

"The central question of this case is whether Protect Marriage, the organization that placed Proposition 8 on the ballot, did so due to animus - or hatred - of lesbian, gay, bisexual and transgender people. Any information that the No on 8 campaign and organizations who were members of the coalition that opposed Proposition 8 may possess is totally irrelevant to this question. Regardless, EQCA and the ALCU have already turned over the documents that had any real impact on voters - those that the voters saw.

"Protect Marriage has not subpoenaed Equality for All, the organization that led the No on 8 campaign. Instead, it singled out two allied civil rights organizations that are not parties to the case to intimidate and dissuade all LGBT organizations and our allies from participating in future campaigns to defeat anti-LGBT measures. We want nothing more than for this case to proceed as quickly as possible. But if this ruling is allowed to stand it will set a harmful precedent that will have a chilling effect on all non-profits working in coalitions on social justice issues. They will fear harassment and the threat of being forced to spend precious, limited resources on responding to costly litigation and subpoenas rather than to do the critical work at hand."

As LGBT POV previously reported, 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 did not object to the ruling, but the ACLU and Equality California filed an objection with Judge Walker, who is overseeing the federal challenge to Prop 8 in District Court. As Judge Walker said in his ruling, the two organizations objected to the magistrate's order

"on the basis that the magistrate's FRCP 26 analysis was clearly erroneous and that the magistrate's application of the First Amendment privilege was contrary to law. Doc #614.

For the reasons explained below, the magistrate's order is neither clearly erroneous nor contrary to law. Accordingly, all objections to the order are DENIED.


The ACLU and Equality California argue that the magistrate clearly erred and abused his discretion in determining that proponents' subpoenas would lead to relevant information under FRCP 26. Doc #614 at 7. This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.


The ACLU and Equality California argue that the documents sought are simply not relevant to the question of voter intent. But because the Ninth Circuit has determined that campaign documents may lead to discovery of admissible evidence, and because the Ninth Circuit's holding is not limited to campaign documents from the side that succeeded in persuading voters, the magistrate did not clearly err in determining that the documents sought by proponents meet the FRCP 26 relevance standard. The magistrate considered and rejected the contrary argument, finding that campaign documents from both sides of the Proposition 8 campaign met the FRCP 26 standard of relevance. Because the record supports a finding that campaign documents from both sides meet the standards of discoverability laid out in FRCP 26, the magistrate's relevance determination is not clearly erroneous."

Judge Walker also found the order did reduce the burden of producing the documents by limiting the search to a list of electronic search terms, limiting EQCA's search to a central server, and naming core groups as protected by privilege.

Walker referred to the discovery hearing on March 16 when Prop 8 proponents argued that the "mix of information available to the voters could help determine the state interest in Proposition 8 and asserted that documents from No on 8 groups could add to the mix. Proponents also argue that the documents might speak to the political power of gays and lesbians." He said that the Yes on 8 proponents failed to prove that the documents they seek are "highly relevant to the claims they are defending against. Nevertheless, proponents' showing satisfies the standard of discoverability set forth in FRCP 26, and the magistrate did not err in ordering the No on 8 groups to comply with the proponents' subpoenas and to produce nonprivileged documents."

Walker also noted that, "Tellingly, the ACLU and Equality California have made no showing regarding the burden on the No on 8 groups in complying with the magistrate's order. The court cannot, therefore, conclude that the magistrate clearly erred in compelling production despite the burden compliance may impose."

Walker also pointed out that on the First Amendment privilege objection, "the ACLU and Equality California make no suggestion concerning how the court should implement their suggested functional approach and in any event failed to furnish the magistrate information from which a functional interpretation of the core group as defined in footnote 12 could be derived." Walker agreed that the magistrate's determination that the First Amendment privilege is limited to a core group of individuals.

Walker also considered the declaration of Elizabeth Gill for the ACLU "who stated that disclosure of campaign strategy and messages "would have hindered [the ACLU's] ability to mount political opposition to Proposition 8" because it would have inhibited a "robust exchange of ideas and free flow of information."

And he cited Equality California's declaration by James Brian Carroll, "who stated that disclosure of communications internal to Equality California would restrict its ability to organize and fund a political campaign." Walker wrote that the arguments where "similar to the showing made by proponents and accepted by the Ninth Circuit" and there for Spero didn't err there, either. He wrote:

"The standard does not protect campaign communications that are not private and internal. Nothing in the Gill and Carroll declarations suggests the standard as applied is insufficient to protect the No on 8 groups' associational rights.

This follows from the magistrate's correct focus on the individuals engaged in the formulation of strategy and messages whose communications were not intended for public distribution. The functional approach advocated by the ACLU and Equality California ignores the important limiting principle that a communication must be private to be privileged under the First Amendment.

The ACLU and Equality California object to the magistrate's determination to limit the scope of the First Amendment privilege to communications within but not between core groups. See Doc #610 at 12-13. The objection is not well-taken....The ACLU and Equality California would have the court stretch the meaning of "internal" to embrace a broad coalition of groups that took a position against Proposition 8. See Doc #609 at 2-6 ("Equality for All Campaign Committee Members"). The problem with attempting to categorize communications among individuals associated with a laundry list of groups is that the ACLU and Equality California failed to furnish the magistrate or the undersigned with a comprehensible limiting principle by which to define a communication between or among persons affiliated with such organizations as internal. No evidence in the record supports a finding that communications among a broad coalition of groups are private and internal.....

Because the No on 8 groups did not present evidence sufficient for the magistrate to include any individual from these groups as part of the core group for Equality for All, the magistrate's decision to exclude the groups is supported by the record and is therefore not clearly erroneous."

Walker also denied inclusion of Equality Institute as a core protected group.

Prop 8 proponents also objected to the magistrate's order but Walker denied those eight objections as well.

Walker concluded that Spero's order "contemplates that production will take place on a rolling basis to conclude not later than March 31, 2010." The court agreed to that schedule, adding that if Prop 8 proponents want to add to the trial record after seeing these documents they have to do so not later than Monday, April 12, 2010.

There was no mention of when he might schedule closing arguments.

Here's AP's Lisa Leff's story on the order.

This story was originally posted on LGBT POV.

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Well, it was kind of predictable that the right would at least try to get these documents when they themselves were subpoenaed for emails.

I'm kinda on the side that says "why the hell not?".

Give them what they want. The onlything that could be damaging is if "our side" did something like, oh, inject animus against the religious into it.

And of course LGBT folk would never do something like that.