Federal U.S. District Chief Judge Vaughn Walker, presiding over the case against Proposition 8 brought by the plaintiffs represented by the Olson/Boies team, is considering whether to order the sponsors of the Yes on 8 campaign to produce internal campaign communications and records over to the the plaintiffs.
Attorney Charles Cooper, representing the Yes on 8 campaign, claimed the documents and internal discussions were private and cited First Amendment protections on political speech and free association. Communications made to the public at large are subject to discovery, Cooper conceded, but internal discussions should remain private.
Law.com reports, "The material sought by gay marriage supporters could make for good impeachment evidence, argued their attorney, Christopher Dusseault of Gibson, Dunn & Crutcher. For instance, if the Yes campaign had commissioned a study that wound up showing that homosexuality is immutable -- and then the campaign withheld it from the public -- that would directly contradict arguments now being made in court, Dusseault said."
"That's a little speculative, Mr. Dusseault. Why not try a little closer to home," Walker said.
If the plaintiffs can show more publicly available contradictions to the defendants' court argument of state interest, then Walker indicated he would be more open to obtaining private documents.
"However, Walker appeared to be angling for some sort of compromise, asking Cooper why some sort of protective order couldn't be fashioned to avoid the pitfalls his side had elucidated," Law.com reports.
In what has been descriptive behavior of the case so far, Cooper stated in papers that if the plaintiffs get access to private documents of the Yes on 8 campaign, then he will request the same from the No on 8 campaign.
Related Reading: A harsh critique of the Olson/Boies legal argument for marriage equality titled, "The Case against Boies-Olson: Wrong on the law, and on civilization."