Case: 10-15649 03/26/2010 Page: 1 of 8 ID: 7279800 DktEntry: 7

No. 10-15649

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________
KRISTIN M. PERRY, et al.,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.,
Defendants,
and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellees.
_________________________

On Appeal From The United States District Court

For The Northern District Of California
No. CV-09-02292 VRW
Honorable Vaughn R. Walker
____________________________________________________
APPELLEES’ RESPONSE TO ACLU’S AND EQUALITY CALIFORNIA’S
MOTION TO EXPEDITE
____________________________________________________
THEODORE J. BOUTROUS, JR. THEODORE B. OLSON
CHRISTOPHER D. DUSSEAULT Counsel of Record
THEANE EVANGELIS KAPUR MATTHEW D. MCGILL
ENRIQUE A. MONAGAS AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue 1050 Connecticut Avenue, N.W.
Los Angeles, CA 90071 Washington, D.C. 20036
(213) 229-7804 (202) 955-8500

Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo
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Plaintiffs respectfully request that the Court significantly expedite the appeal

from the district court’s discovery order filed by No on Proposition 8, Campaign

for Marriage Equality: A Project of the American Civil Liberties Union of

California and Equality California (collectively “ACLU”). Plaintiffs will be

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

through damages and therefore generally constitute irreparable harm”).

The district court denied Plaintiffs’ motion for a preliminary injunction

primarily because the parties committed to bringing this case to trial on a most

expeditious basis. In a matter of months, Plaintiffs completed all necessary fact

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

elapsed between the district court’s denial of Plaintiffs’ preliminary injunction

motion and the commencement of trial. Because the State of California has

admitted that Proposition 8 continues to violate the constitutional rights of tens of

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thousands of Californians every day, it is critical that this appeal respect the

expedited schedule set forth by the district court.

Plaintiffs therefore request that the Court significantly expedite the appeal,

as it did in connection with Proponents’ appeal in November. Perry v.

Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). On Friday, November 20, 2009,

the Court ordered Plaintiffs to respond to Proponents’ motion to stay pending

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

by the district court.

Alternatively, the Court could resolve this appeal on the basis of the well-

established contempt rule, which holds that, to obtain appellate jurisdiction,

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

contempt citation. Until a contempt citation is issued as a final judgment in the

contempt proceeding, we lack jurisdiction to review the order.”); Belfer v. Pence,

435 F.2d 121, 123 (9th Cir. 1970) (“Here there is no evil which cannot be

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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

requirement that a nonparty must be in contempt of court in this situation is a

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

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other interlocutory appeals, threaten to complicate and prolong litigation

unduly.”).1

Respectfully submitted.
Dated: March 26, 2010
By /s/ Theodore B. Olson

GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson
Matthew D. McGill
Amir C. Tayrani
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 955-8668
Facsimile: (202) 467-0539

Theodore J. Boutrous, Jr.

Christopher D. Dusseault
Theane Evangelis Kapur
Enrique A. Monagas
333 S. Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7804
Facsimile: (213) 229-7520

Attorneys for Plaintiffs-Appellees

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

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.

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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

contains 819 words.

Dated: March 26, 2010

By /s/ Theodore B. Olson
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9th Circuit Case Number(s) No. 10-15649

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03/26/2010
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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