Before I delve into this, I’d like to say that while I’m an attorney, I am by no means an expert in discovery. However, I’ll try to explain it as best I can.
To start, discovery runs on good faith backed by a big old stick. The normal process is for each side to ask questions (“interrogatories”) and respond to the opposing counsel’s questions with responses, and eventually documents. Document review is typically the domain of first year lawyers, who get to spend hours upon hours hunting for the smoking gun amidst heaps and heaps of meaningless paper. In fact, one discovery strategy is to bury the opposing counsel in so much paper that the good stuff remains hidden. A judge can control this sort of gamesmanship if it gets out of hand.
Now, in this particular case, the defendant-intervenors asked for a bunch of documents from the No on 8 Coalition. It was a similar request as the Yes on 8, protectmarriage.com, organization had received. Eventually, Judge Walker’s order was slightly limited to exclude completely internal documents within a “core group” of campaign insiders. But, they ended up turning over a bunch of useful documents, which I won’t go through now. But, go back over the old posts from the trial, and you’ll stumble across them.
In return, the Yes on 8 asked for similar documents. Now, at first blush, you’d think, well, fair’s fair. But, not really though. The only actions in question here are the actions of the Yes on 8 team and whether the campaign was seeking to deny equal protection of the law. On the flip side, the No on 8 coalition clearly had no such motives, and the constitutionality was never in question.
The relevant rules here are the Federal Rules of Civil Procedure, particularly Rule 26, which states, in part:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
The key part of this is relevancy. There are a number of different standards for relevancy, but they are all generally lenient, or at least far more lenient that standards for evidence at trial. That being said, even by these more lenient standards, this is a big reach. And frankly, all of the parties know that, but the Yes on 8 team is trying its best to get as much information as possible for future campaigns. Sure, they won’t say that, but that’s what is going on here. But, to the issue at trial, I’ll let Judge Walker sum it up:
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.
Under the FRCP 26, the court, in this case Magistrate Spero, is to weigh the burden of disclosing the documents against the relevancy of the documents to the case at hand. After all, we don’t want our courts to just be a big fishing pond, be it for corporations, individual litigants, or for campaigns, as we have in this case. These issues are all somewhat subjective, that is the judge has to look at evidence and weigh relative merits. Unlike what Justice Roberts would have you believe, this isn’t about balls and strikes, it’s more like judging a boxing match. Each side has relative merits, and the judge has to use his legal training and experience to end up with the best result.
Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side. However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign. The importance of this distinction is critical. There is a bright line for why the Yes on 8 materials were discoverable. However, if the ACLU and EQCA documents are discoverable, any body associated with a campaign that is involved in litigation is discoverable. As Geoff Kors of EQCA points out, that is simply not something that we can allow to go unchallenged:
“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.”
I know people are anxious for some resolution on this case, but folks, it’s going to be a while. There are still a lot of appeals to go; it’s likely to be years before we see a resolution. Even if Judge Walker overturns Prop 8, he’s likely to put a stay pending appeal. That’s why it is critical that we not take our eyes off the ball, which is the ballot box. In my mind, Prop 8 is clearly unconstitutional for several reasons. That being said, sometimes you have to fight when you shouldn’t have to. It’s not right, but it’s the way it is. We’ll win both in the legal arena and the ballot box.