Prop 8 Trial Update: No on 8 Groups Ordered to Turn Over Documents

The closing arguments in the Prop 8 trial have been delayed as proponents of California’s ban on same-sex marriage seek campaign documents from Equality California and the ACLU, hoping to find new evidence to bolster their case even though the trial testimony phase is over.

Today, Judge Vaughn Walker rejected arguments from No on 8 groups that, among other things, their documents were irrelevant because they are not plaintiffs in the lawsuit. Instead, two same-sex couples are seeking to overturn Prop 8, and they are represented by Ted Olson and David Boies.

The whole matter has a if you make us do it, we will make you do it feel to it. In fact, Andy Pugno, general counsel for, wrote last week that they were simply asking the No on 8 campaign leaders to release “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.”

Last year, when Olson and Boies sought campaign communication from the Yes on 8 side, seeking evidence of campaign strategy, the Ninth Circuit Court of Appeals ruled that the proponents had a First Amendment privilege limited to private, internal communications concerning campaign strategy and messages among the core group of organizers. But that communication did not extend to such things as messages that core organizers sent to other groups.

Proponents of Prop 8 have said that they are anxious to show the strength of gays and lesbians as a political and fund-raising force, and this info presumably would help them even though it’s unusual to have this kind of a discovery dispute after the trial is all but over. All that remains are closing arguments, which have yet to be scheduled. Walker had assigned U.S. Magistrate Joseph Spero to make the initial ruling on the release of the documents, and Spero said that they were relevant as they could shed light on “the meaning and impact of the messages that were sent to the voters.”

Pugno wrote, “[W]hen 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.”

The groups have until March 31 to turn over the records.

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