Seems that the anti-equality folks are seeking post trial discovery documents from the aclu & equality california, and found a judge to agree.  We'll have to remember that using the appeal process, according to mr. pugno, is engaging in “legal shenanigans”  (But the legal shenanigans of our moneyed opponents continue: EQCA has appealed Magistrate Spero’s ruling).  Does that mean they will not engage in shenanigans themselves if their poorly argued defense is rejected by the judge?

letter below  A Promising Development

Dear Friends,

Last week, we finally received some good news about our efforts to level the playing field in the Perry v Schwarzenegger case. As you may recall, when the live testimony phase of the trial concluded in late January, our opponents “rested their case,” but our outstanding team of attorneys defending Prop 8 did not. The reason? Even at that late hour we were still waiting for Chief Judge Vaughn Walker to rule upon our significant pending motion, by which we asked the Court to direct the leaders of the No on 8 Campaign to release to us the same types of internal campaign memos, strategies, and communications that we at had long before already been forced to hand over to them to use as evidence during the trial.

Under normal circumstances, judges ensure that the discovery and disclosure of potentially relevant evidence occur well before trial, and certainly no later than during the evidentiary portion of the trial. That is exactly what Judge Walker had ordered and the proponents to do. However, even as the trial was drawing to a  close, Judge Walker still had not taken up our “motion to compel discovery” which would have ordered the opponents of Prop 8 to also disclose any of their internal documents of the same kind we had been compelled to disclose. Of course we disagreed from the outset with the idea that any of these internal campaign records should have to be produced— by either side.  But once the ground rules had been laid to force us to disclose our confidential records, it was shocking and upsetting to see those rules not applied equally to our opponents.

So after the live testimony in the case had concluded, Chief Judge Walker referred our request for equal treatment to U.S. Magistrate Judge Joseph Spero.  Despite being outnumbered in the courtroom by 10-to-1, our attorneys clashed once again in the San Francisco Courtroom, arguing forcefully that the “No” campaign should be held to the same legal standards that the “Yes” campaign has had to endure in this case.  Last week, Magistrate Spero ordered the No on 8 groups (Equality California, Californians Against Eliminating Basic Rights, an ACLU campaign committee, and the No on Prop 8 umbrella campaign) to produce to our attorneys copies of all their internal documents “that contain, refer or relate to arguments for or against Proposition 8.”

They have until March 31 to produce these documents to us.

While this is good news for us, it clearly requires more work on our end to comb through potentially thousands of pages of memos, notes and emails in order to analyze and extract their impact on the case.  Even though the Perry case has been out of the headlines, the work for our legal team has not slowed. This is why we ask for your continued financial support as they work tirelessly on your behalf.

Notably, when we sought to protect some of our internal documents as being confidential and privileged, our opponents cried foul.  Yet the executive director of California’s most influential homosexual activist organization is trying to make the case that records of communications from and to his group should be out of bounds.

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.” The ACLU is trying to sing the same song, arguing that the documents we seek are “irrelevant and privileged.”  Of course, prior to being mandated to turn over thousands of our own documents, we made almost exactly the same arguments to the court and yet were denied relief!

Magistrate Spero noted in his ruling that “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…contain, refer or relate to arguments for or against Proposition 8.”

But the legal shenanigans of our moneyed opponents continue: EQCA has appealed Magistrate Spero’s ruling to Chief Judge Walker, who has granted a hearing on Kors’ motion.  The hearing is scheduled for Tuesday, March 16.

We will continue to keep you informed about the progress of this issue and how it may affect the scheduling of a date for closing arguments.  In the meantime, please continue to pray for our attorneys and their staff and all who are involved in this epic battle to preserve traditional marriage.


Andy Pugno
General Counsel,



1 Comment

Leave a reply