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August 16, 2009

Judge ups the ante in Prop 8 challenge litigation; more to come

Wasting no time, U.S. District Court Judge Vaughn Walker, who is hearing Perry v. Schwarzenegger, has zapped both the plaintiffs' team of attorneys (led by Ted Olson and David Boies) and defendants' lawyers (Charles Cooper et al) with an order essentially rejecting their case management statements for insufficiency. (Read Plaintiffs' case management statement and Defendants' case management statement.) The statements are intended to identify the issues on which the parties will introduce evidence; they also contain proposed schedules for different stages in the lawsuit. Judge Walker directed them to rewrite the statements to more specifically identify both the points they intended to contest (e.g., the existence or extent of the political powerlessness of lgbt people, a point relevant to the constitutional standard that will be applied in the case), as well as potential witnesses and categories of witnesses (historians, sociologists, economists, demographers, oh my).

The new order seems to be a good sign for the advocacy groups trying to intervene as plaintiffs, since their main complaint about the Olson/Boies litigation strategy has been its hesitancy to invest in building an extensive factual record. Judge Walker apparently values the capacity to map out a detailed plan for presentation of evidence, a challenge for which the groups can draw on their long experience in mounting gay rights litigation.

Both existing parties were ordered to revise their case management documents and file them tomorrow. The lgbt groups seeking to intervene will also file one tomorrow. The contours are starting to take shape of what could be the most extensive mobilization ever of experts and documents in an lgbt rights case.

On Wednesday, the combatants meet again in the courtroom to argue the pending motions to intervene and probably to hear the judge's timetable for discovery and pre-trial motions. Over the coming week, I'll be writing a series of pieces on aspects of the Perry lawuit.


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