In The United States Court of Appeals For The Ninth Circuit: Plaintiffs-Appellees
In The United States Court of Appeals For The Ninth Circuit: Plaintiffs-Appellees
In The United States Court of Appeals For The Ninth Circuit: Plaintiffs-Appellees
No. 10-15649
Plaintiffs respectfully request that the Court significantly expedite the appeal
irreparably harmed by any further delay in this case—which was tried over two
months ago but has yet to be decided because of this discovery dispute—because
they are being denied the fundamental right to marry. Nelson v. NASA, 530 F.3d
865, 882 (9th Cir. 2008) (“constitutional violations cannot be adequately remedied
primarily because the parties committed to bringing this case to trial on a most
and expert discovery and prepared for and conducted a three-week trial in an effort
to reach a speedy resolution of their claims. Yet now, more than two months since
trial, closing arguments have not been scheduled because of the delay caused by
Proponents’ belated discovery requests. Indeed, the two months that this discovery
dispute has consumed since trial is approaching nearly 25% of the entire time that
motion and the commencement of trial. Because the State of California has
1
Case: 10-15649 03/26/2010 Page: 3 of 8 ID: 7279800 DktEntry: 7
thousands of Californians every day, it is critical that this appeal respect the
Plaintiffs therefore request that the Court significantly expedite the appeal,
Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). On Friday, November 20, 2009,
appeal by 12 noon on Monday, November 23, 2009. Proponents were then given
until 5:00 p.m. on November 23, 2009 to file a reply. Oral argument was held only
five business days after briefing was completed. The Court should implement a
similarly expedited briefing schedule here, which would respect the schedule set
Alternatively, the Court could resolve this appeal on the basis of the well-
nonparties who seek review of a discovery order must first refuse to comply with
that order, be sanctioned for contempt, and then appeal from the contempt citation.
In re Subpoena served on Cal. Pub. Util. Comm’n, 813 F.2d 1473, 1476 (9th Cir.
1987) (“[I]f the district court denied a nonparty’s motion to quash, the nonparty
could obtain review only by electing to ignore the subpoena and appeal the ensuing
435 F.2d 121, 123 (9th Cir. 1970) (“Here there is no evil which cannot be
2
Case: 10-15649 03/26/2010 Page: 4 of 8 ID: 7279800 DktEntry: 7
corrected on a later appeal. The rights of the [nonparty] petitioners are protected
sufficiently by their ability to disobey and test the Hawaii court’s discovery order
on appeal from a subsequent citation for contempt.”). The contempt rule applies
with equal force when a third party resisting discovery petitions for mandamus.
Belfer, 435 F.2d at 123 (denying mandamus because nonparties could protect their
interests on appeal from a contempt order); see also William W. Schwarzer et al.,
California Practice Guide: Federal Civil Procedure Before Trial § 13:68 (The
Rutter Group 2009) (“A discovery order directed at a nonparty is not reviewable
by mandamus because the nonparty can refuse to comply and appeal from a
contempt order.”).
Although ACLU does not mention the contempt rule or any basis for this
Court’s jurisdiction over the appeal, it is clear that ACLU must first refuse to
comply with the district court’s discovery order and be held in contempt before it
may pursue an appeal. See In re Subpoena, 813 F.2d at 1476 n.1 (“The
serious matter and serves to illustrate the strictness in applying the final
judgment rule.”); see also Burden-Meeks v. Welch, 319 F.3d 897, 900 (7th Cir.
2003) (“When documents are sought from the entity that claims the privilege, there
is every reason to insist that it go through the contempt process, which by raising
the stakes helps the court winnow strong claims from delaying tactics that, like
3
Case: 10-15649 03/26/2010 Page: 5 of 8 ID: 7279800 DktEntry: 7
unduly.”).1
Respectfully submitted.
Dated: March 26, 2010
By /s/ Theodore B. Olson
1 Likewise, ACLU cannot invoke the “narrow and selective” collateral order
doctrine. Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 609 (2009)
(internal quotation marks omitted). Indeed, the U.S. Supreme Court recently
held in Mohawk that discovery orders denying claims of privilege are not
appealable under the collateral order doctrine. Id. at 603; see also Perry,
591 F.3d at 1154-56.
4
Case: 10-15649 03/26/2010 Page: 6 of 8 ID: 7279800 DktEntry: 7
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule
32-1, the attached brief is proportionately spaced, has a typeface of 14 points, and
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
03/26/2010
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
SERVICE LIST
Alan L. Schlosser
ACLU FOUNDATION OF NORTHERN CALIFORNIA INC.
39 Drumm St.
San Francisco, CA 94111
Judy Whitehurst
OFFICE OF THE COUNTY COUNSEL
Kenneth Hahn Hall of Administration, Room 648
500 W. Temple Ave.
Los Angeles, CA 90012
Andrew P. Pugno
LAW OFFICES
101 Parkshore Drive, Suite 100
Folsom, CA 95630
Carolyn Chang
FENWICK & WEST, LLP
Silicon Valley Center
801 California Street
Mountain View, CA 94041-1990
David H. Thompson
Howard C. Neilson, Jr.
Nicole Moss
Peter A. Patterson
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Leslie Kramer
Lauren Whittemore
FENWICK & WEST, LLP
555 California Street
San Francisco, CA 94104