Case 2:04-cv-08425 Document 118 Filed 03/05/10 19 Pages

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DAN WOODS (SBN: 78638) PATRICK HUNNIUS (SBN: 174633) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: phunnius@whitecase.com Attorneys for Plaintiff LOG CABIN REPUBLICANS

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV04-8425 VAP (Ex) LOG CABIN REPUBLICANS (1) EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH LOG CABIN REPUBLICANS NOTICE OF DEPOSITION OF USA AND ROBERT M. GATES PURSUANT TO FRCP 30(b)(6); (2) MEMORANDUM OF POINTS AND AUTHORITIES; AND (3) DECLARATION OF PATRICK HUNNIUS Date: N/A Time: N/A Courtroom: N/A Discovery Cutoff: Mar. 15, 2010 Pretrial Conference: June 7, 2010 Trial: June 14, 2010 DISCOVERY MATTER

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. IV. 6. 7. I. II.

TABLE OF CONTENTS Page INTRODUCTION.......................................................................................... 3 GOOD CAUSE EXISTS FOR THE COURT TO COMPEL DEFENDANTS TO COMPLY WITH PLAINTIFFS NOTICE............................................... 5 1. 2. 3. 4. 5. Defendants Objections Are Untimely and Do Not Excuse Their Failure to Appear.............................................................................................. 5 Defendants Professed Lack of Knowledge on the Relevant Topics Does Not Excuse Their Failure to Appear...................................................... 5 Testimony Regarding the Application of the Policy to Women is Relevant to the Purported Rational Basis of the Policy .......................... 6 Defendants Burden of Proof at Trial Does Not Excuse Their Failure to Appear.................................................................................................. 7 The Testimony Sought Relates to Information Known or Reasonably Available to the Government ................................................................ 8 a. b. Defendants Hyper-semantic Objections Ignore the Topics Identified in the Notice.............................................................. 8 At Least Two Federal Employees are Nominally Familiar with All Topics Described in Log Cabin Republicans Notice of Deposition............................................................................... 10 Defendants Cannot Escape Responsibility for Producing a Witness by Vacillating on the Identity of that Witness ............. 11 Defendants Are the United States, and Are Required to Comply With Discovery Regardless of Which Federal Department or Agency Controls the Relevant Information.............................. 11

c. d.

Testimony Regarding Enlistment Waivers is Clearly Relevant ............ 12 Defendants Must Provide a Witness Because a Deposition is an Appropriate Method to Obtain the Evidence Sought by Plaintiff ......... 13

NOTICE TO OPPOSING COUNSEL .......................................................... 13 CONCLUSION............................................................................................ 14

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TABLE OF AUTHORITIES Page

FEDERAL CASES FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978) .......................................................................................... 6 Harvey Aluminum, Inc., v. National Labor Relations Board, 335 F.2d 749 (9th Cir. 1964) ........................................................................... 12 Henry v. Gill Industries, Inc., 983 F.2d 943 (9th Cir. 1993) ............................................................................. 5 Hilao v. Estate of Marcos, 103 F.3d 762 (9th Cir. 1996) ............................................................................. 5 Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................................................... 7 New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164 (D. Ma. 2007)........................................................................... 5 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) ........................................................................... 7 Romer v. Evans, 517 U.S. 620 (1996) .......................................................................................... 6 FEDERAL STATUTES 5 U.S.C. 706(2)(A) .............................................................................................. 6 10 U.S.C. 654 .................................................................................................. 6, 7 Title 10, 654 of the United States Code ............................................................... 3 FEDERAL RULES Fed. R. Civ. P. 26(b)(1) .......................................................................................... 8 Fed. R. Civ. P. 30(b)(6) ...................................................................................... 5, 6 Fed. R. Civ. P. 30(c)(2) .......................................................................................... 5 Fed. R. Civ. P. 33(d)............................................................................................. 13 Fed. R. Civ. P. 37(d)............................................................................................... 5 Local Rule 7-19 .................................................................................................... 13 - ii LOSANGELES 855394 (2K)

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TABLE OF AUTHORITIES
(continued)

Page

Local Rule 37-2.1 ................................................................................................... 4 FEDERAL REGULATIONS DEPT OF THE ARMY, ARMY REGULATION 601-210 ............................................... 12 DEPT OF THE ARMY, ARMY REGULATION 611-1 ..................................................... 6

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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Pursuant to Local Rule 7-19, plaintiff Log Cabin Republicans (Plaintiff) hereby applies ex parte for an order compelling Defendants United States of America and Robert M. Gates, Secretary of Defense (Defendants) to comply with Plaintiffs Notice of Deposition of USA and Robert M. Gates pursuant to Federal Rule of Civil Procedure 30(b)(6) (the Notice). Plaintiff submits that cause exists to grant the relief requested herein because Defendants have failed to produce a witness in response to the Notice, and with the discovery deadline fast approaching, little time is left to complete the Federal Rule of Civil Procedure 30(b)(6) deposition. As such, Plaintiff seeks immediate relief from this Court and, accordingly, seeks this relief ex parte. Pursuant to Local Rule 7-19, Log Cabin Republicans has provided notice of this ex parte application to opposing counsel, as set forth in the accompanying Declaration of Patrick Hunnius, and asked opposing counsel whether they would oppose the application. As of the time of this filing, counsel for Plaintiff had not received a response. This application is based on this ex parte application, the accompanying memorandum of points and authorities, the accompanying Declaration of Patrick Hunnius, all pleadings, records, and files in this action, and such evidence and argument that may be presented at any hearing on this application.

Dated:

March 5, 2010

PATRICK HUNNIUS WHITE & CASE LLP

By: /s/ Patrick Hunnius Patrick Hunnius Attorneys for Plaintiff LOG CABIN REPUBLICANS

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case challenges the constitutionality of the so-called Dont Ask, Dont Tell, Dont Pursue policy (the Policy), codified as federal law in Title 10, Section 654 of the United States Code, entitled Policy Concerning Homosexuality in the Armed Forces, as well any Department of Defense regulations promulgated pursuant to Title 10, Section 654 of the United States Code. On December 21, 2009, Plaintiff served on Defendants a 30(b)(6) Notice of Deposition (Notice) to be taken on January 25, 2010 at the offices of Plaintiffs counsel in Washington, D.C. Declaration of Patrick Hunnius, 2. A copy of the Notice is attached hereto as Exhibit A. The Notice described a variety of topics relevant to the general application of Dont Ask, Dont Tell (the Policy), the application of the Policy to different groups within the United States Armed Forces, and the effects of the application of the Policy. Id. Notwithstanding the clear relevance of these and the other testimony topics and without first seeking a protective order or any other relief from their obligations to produce a witness Defendants did not produce a deponent on the date of the deposition.1 Thereafter, on January 29, 2010, Defendants sent Plaintiff a letter objecting to Plaintiffs Notice, in its entirety. A copy of the letter from Defendants is attached hereto as Exhibit B. Defendants proposed no alternative date for the deposition and made it clear they refused to designate a witness to testify on any subjects listed in the Notice.

Several days before the scheduled deposition, Plaintiff asked Defendants to confirm they would be producing a witness. Defendants responded that they had not received Plaintiffs Notice. Plaintiff immediately sent a copy of the previously served Notice by email. -31
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The parties met and conferred telephonically on February 9, 2010, but were unable to reach a satisfactory conclusion. Hunnius Decl., at 4. On February 11, 2010, Plaintiff sent Defendants a letter suggesting a briefing schedule that would ensure that the parties dispute regarding the Notice could be heard by the Court before the discovery cutoff. Id. at 5. A copy of the letter is attached hereto as Exhibit C. Plaintiff asked that Defendants respond to the proposed briefing schedule by February 17 in order assuming Defendants agreed to allow the parties to notify the Court of the briefing schedule. Id. Defendants never responded, thereby preventing Plaintiff from being able to proceed by a joint stipulation on the matter as contemplated by Local Rule 37-2.1. Id.2 Defendants obstructionism in objecting wholesale to the discovery and refusing to cooperate by agreeing to a briefing schedule have resulted in there being insufficient time to have this motion heard on regular notice before the discovery cutoff of March 15, 2010. Defendants have failed to respond to the Notice, and it is integral to Plaintiffs case that Plaintiff depose Defendants. For the reasons set forth below, Plaintiff therefore requests that this Court order Defendants to produce a deponent or deponents responsive to Plaintiffs Notice.

Plaintiff provided notice of this Application via email on March 4, 2010. Hunnius Decl., 9. On March 5, 2010, Defendants informed Plaintiff by letter that it opposes the Application and claimed for the first time and without any evidence that Defendants had agreed to the briefing schedule proposed by Plaintiff. Id., Ex. D. Plaintiff asked Defendants to explain when and where they had communicated their agreement to the proposed briefing schedule. Id., Ex. E. Defendants response confirms that they never did. See id., Ex. F. -42
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II. GOOD CAUSE EXISTS FOR THE COURT TO COMPEL DEFENDANTS TO COMPLY WITH PLAINTIFFS NOTICE Defendants Objections Are Untimely and Do Not Excuse Their Failure to Appear Defendants are obliged, pursuant to Federal Rule of Civil Procedure 30(b)(6) to designate and produce a witness to testify regarding the topics delineated in the Notice. It is undisputed (and self-evident) that: (1) the Notice was properly issued and served; and (2) Defendants did not seek a protective order regarding the Notice and were not otherwise relieved from their obligation to produce a witness. A party properly noticed under Rule 30(b)(6) may not fail to appear for its deposition. Fed. R. Civ. P. 37(d); Henry v. Gill Industries, Inc., 983 F.2d 943, 947 (9th Cir. 1993); Hilao v. Estate of Marcos, 103 F.3d 762, 764-765 (9th Cir. 1996). Unless a protective order has been applied for, the fact that the notice of deposition is objectionable does not excuse the failure to appear. New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 166 (D. Ma. 2007). Plaintiffs Notice was served on December 21, 2009; the Notice scheduled Defendants deposition for January 25, 2010, giving Defendants more than 30 days to produce a deponent. However, Defendants failed to produce a deponent; indeed, they did not respond to Plaintiff until January 29, 2010 four days after the scheduled deposition. While a party may object to the deposition, the examination still proceeds; the testimony is taken subject to any objection. Fed. R. Civ. P. 30(c)(2). If Defendants wish to object to Plaintiffs questioning, they may do so at the deposition after they have produced a responsive deponent or deponents. 2. Defendants Professed Lack of Knowledge on the Relevant Topics Does Not Excuse Their Failure to Appear Throughout their objections, Defendants claim that they have no knowledge of several topics identified by Plaintiff, and assert that their lack of knowledge excuses -5LOSANGELES 855394 (2K)

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their failure to designate a witness. For example, paragraph 6 of the Notice seeks [r]eports, studies, or analyses conducted by or on behalf of Defendants relating to the experience of the armed forces of nations other than the United States with military service by individuals with a homosexual orientation or by individuals who engage in homosexual conduct [. . .]. Defendants demur by saying they have conducted no such report. Defendants objection is non-responsive; moreover, it is irrelevant. If Defendants plan on relying solely on the congressionally-alleged evidence underlying the Policy to support the constitutionality of the Policy, then testimony relating to that evidence if there is any is relevant and discoverable in a Rule 30(b)(6) deposition. Even if the deponent can identify no evidence in support of the Congressional findings cited by the statute, then Defendants lack of evidence or knowledge is also relevant as to whether the Policy is arbitrary and capricious, or motivated solely by animus. See 5 U.S.C. 706(2)(A); FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 790 (1978); Romer v. Evans, 517 U.S. 620, 632 (1996). Defendants must therefore produce a deponent, even one who will testify to Defendants lack of knowledge or evidence on the relevant topics. 3. Testimony Regarding the Application of the Policy to Women is Relevant to the Purported Rational Basis of the Policy Defendants must provide testimony regarding the application of the Policy to women and other service members not permitted to hold a combat Military Occupation Specialty (MOS) because that testimony is relevant to the purported rational basis of the Policy: to sustain unit cohesion in combat. See DEPT OF THE ARMY, ARMY REGULATION 611-1, at 1-1 (1997), available at http://www.army.mil/USAPA/epubs/pdf/r611_1.pdf [hereinafter ARMY REGULATION 611-1]. The primary purpose of the armed forces, as identified by the Policy, is to prepare for and to prevail in combat should the need arise. 10 U.S.C. 654. The -6LOSANGELES 855394 (2K)

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Policy presupposes that success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion. Id. To the extent that Defendants allege that gay and lesbian individuals who volunteer to defend their country are an impediment to their comrades discipline in combat, Plaintiff seeks discovery regarding service members subject to the Policy who do not and/or are not permitted to engage in combat. The testimony would be relevant as to whether a rational nexus exists between the governments interest in combat unit cohesion and the exclusion of gays and lesbians from non-combat positions. Testimony showing that the Policy led to a proportionally higher number of discharges from combat units than it did from noncombat units might demonstrate the existence of that nexus. Conversely, testimony showing the opposite may tend to disprove the existence of that nexus. In either case, the testimony is directly relevant to the rational basis at issue; Defendants, therefore, must produce a witness to provide that testimony. 4. Defendants Burden of Proof at Trial Does Not Excuse Their Failure to Appear Defendants also rely on Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), to justify their refusal to produce a witness. Their reliance is mistaken for three reasons. First, as this Court pointed out, Philips discusses equal protection concerns, not substantive due process, as is relevant here. Order re Mot. To Dismiss at 17, June 9, 2009, Dkt. No. 83. Second, Philips speaks to the governments burden of proof in the rational review of a statute; it does not refer to the governments responsibilities to provide witnesses during the discovery process. Philips, 106 F.3d at 1425. Finally, the holding in Philips was arguably limited by Lawrence v. Texas, 539 U.S. 558 (2003), and is inapposite as authority now under any circumstance. Defendants argument conflates the burden of proof at trial with the different question of what is an appropriate subject for discovery before trial. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys -7LOSANGELES 855394 (2K)

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claim or defense. Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id. Here, Plaintiff seeks testimony relating to the evidence if there is any in support of the Policy, and relating to the application of the Policy. Defendants obligation to provide this witness is not affected by their burden of proof at trial. Therefore, Defendants must produce a deponent to provide the testimony sought by Plaintiff. 5. The Testimony Sought Relates to Information Known or Reasonably Available to the Government Defendants object to Plaintiffs Notice on the grounds that the paragraphs 6, 7, 11, 15, and 16 reports, studies and polls relating to the Policy, as well as the names of the individuals responsible for administering the policy are not known or reasonably available to the government. As is detailed below, this is patently untrue; Defendants have demonstrated that they have information on many of these topics within their control through their responses to Plaintiffs first set of requests for production of documents, which include studies of foreign militaries and internal studies of U.S. military personnel policies. See, e.g., Dec. of Patrick Hunnius. Defendants cannot credibly claim that this knowledge is not reasonably available to them. a. Defendants Hyper-semantic Objections Ignore the Topics Identified in the Notice Defendants specifically object first to Paragraph 6, which identifies: Reports, studies or analyses conducted by or on behalf of Defendants relating to the experience of the armed forces of nations other than the United States with military service by individuals with a homosexual orientation or by individuals who engage in homosexual conduct, including the consideration or evaluation of such service by those foreign states or their armed forces. Defendants respond by claiming that [t]he Department of Defense has not conducted its own independent study of the experience of other nations regarding gay -8LOSANGELES 855394 (2K)

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and lesbian service members and their military service. Even assuming the veracity of Defendants claims, their objection is orthogonal to the topic identified. However, Plaintiff seeks [r]eports, studies or analyses conducted by or on behalf of Defendants. To say that Defendants have not conducted their own independent study ignores the issue of whether studies were made by 3rd parties on behalf of the DOD. Such reports, prepared for the Department of Defense, clearly exist. Indeed, the 1993 RAND Report, which includes a study of foreign militaries homosexual personnel policies, written by the RAND Corporation on behalf of the DOD and already produced by Defendants in their responses to Plaintiffs first set of requests for production of documents proves conclusively that Defendants have the requisite knowledge sought by Plaintiff. Moreover, Defendants have admitted publicly that they have information from foreign governments regarding the open service by gay and lesbian individuals. U.S. Congress. Senate Armed Services Committee. Testimony Regarding DOD Dont Ask, Dont Tell Policy, As Delivered by Secretary of Defense, Robert M. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff. (Date 2/2/10). Text from Joint Chiefs of Staff Official Web Site. Available at http://www.jcs.mil/speech.aspx?id =1322; Accessed 3/3/10. Defendants claim that they have no information to disclose is patently untrue. Defendants next object to Paragraph 7, which identifies [r]eports, research, or analysis concerning United States Armed Forces personnel and homosexual conduct or homosexual orientation commissioned, requested, or received by Defendants. Defendants objection is based on the assertion that the Department of Defense has not conducted or commissioned such a report, research, or analysis. Their assertion is false; such studies were included in, inter alia, the RAND Report, received by Defendants in 1993 and produced by Defendants in their responses to Plaintiffs first set of requests for production of documents. Moreover, Defendants have publicly admitted their awareness of studies and polls regarding the Policy. Plaintiff clearly has the right to depose at least one witness with knowledge of the -9LOSANGELES 855394 (2K)

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reports in DODs possession. Defendants objection regarding Paragraph 15 is similarly misguided. Defendants claim that they cannot produce a witness regarding polls conducted by or on behalf of the Defendants measuring public opinion regarding service by gay and lesbian individuals because they conducted no such study. However, communications referenced by Defendants themselves, produced by Defendants in this case, show that such polls are conducted by the United States Armed Forces.3 Defendants claim that they conducted no relevant polls is completely untrue. b. At Least Two Federal Employees are Nominally Familiar with All Topics Described in Log Cabin Republicans Notice of Deposition Defendants failure to identify a deponent is especially troublesome given that Log Cabin Republicans can themselves identify at least two staff employees of the United States Senate Jonathan D. Clark and Gerald Leeling who are described by their employers as Majority Professional Staff Members for Military Personnel Issues Homosexual Conduct Policy. U.S. Congress. U.S. Senate Armed Services Committee Staff Listing, http://armed-services.senate.gov /SASC% 20STAFF %20AORs%20-%20SEPTEMBER%202009.pdf, Accessed 3/3/10. To say that the Defendants are without sufficient knowledge to provide even one witness regarding Examples include the following email: Date: Tuesday, October 13, 2009, 12:42 PM | From: [redacted] | To: [redacted] Subject: RE: Dont Ask For the academies, how about: Suppose the Dont ask, dont tell policy was overturned and homosexuals were allowed to serve openly in the military. To what extent would this change in policy affect your military career plans once you have completed your initial commitment. Mark one. Very large extent Large extent Moderate extent Small extent Not at all [Dec. of P. Hunnius, Ex. A]
3

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the DODs homosexual conduct policy is, at best, disingenuous. c. Defendants Cannot Escape Responsibility for Producing a Witness by Vacillating on the Identity of that Witness Defendants also object to Paragraph 11, calling for the designation of a witness to testify about [t]he recruiting and hiring policies of private contractor corporations employed since 2002 by the United States in Iraq or Afghanistan, specifically relating to any non-discrimination policies or guidelines as to those policies. Defendants claim that the Notice is vague, asserting that [i]t is unclear whether the Notice calls for the designation of a Government Officer or agent to testify. Again, Defendants objection sidesteps the actual testimony called for in the Notice. Plaintiff does not state a preference between government officers or agents because the distinction is irrelevant. Plaintiff is entitled to depose the person most knowledgeable regarding the Notice whomever the government determines, whether officer or agent. Again, Defendants evasions do not excuse them from their responsibility to comply with the Federal Rules of Civil Procedure. They must produce a deponent whether officer or agent to testify on the topic noticed. d. Defendants Are the United States, and Are Required to Comply With Discovery Regardless of Which Federal Department or Agency Controls the Relevant Information Defendants further claim that they do not need to produce a witness responsive to Paragraph 16, calling for a witness to testify about the fiscal impact of the policy, including any studies, reports, research, or analysis regarding the expenses associated with the policy, and the costs of recruiting additional personnel to replace service members discharged pursuant to the Policy. Their reasoning follows: As you know, the Government Accountability Office provided estimated costs in 2005, but that Office is an arm of Congress, not an Executive Branch agency. To the extent that Defendants are claiming that they are only responsible for producing information held by the Department of Defense, or that Plaintiff seeks information exclusively - 11 LOSANGELES 855394 (2K)

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from the Department of Defense, Defendants are mistaken. Plaintiff asserts its right to propound discovery requests on any agency or department of the United States, a named defendant. Agency and department structure does not exempt information from discovery requests propounded upon the United States; where the federal government is a party to the suit, information controlled by any agency is considered within the possession of the United States. See Harvey Aluminum, Inc., v. National Labor Relations Board, 335 F.2d 749, (9th Cir. 1964) (In a criminal prosecution the Department of Justice would scarcely be heard to say that it was not required to produce statements otherwise within the rule simply because the documents rested in the hands of another federal agency, . . . and though the Board may not be able to compel them to produce documents in their possession, the President or, if need be, the courts, may do so.). Thus, Defendants cannot claim that they are not obligated to produce information or witnesses in the control of the Government Accountability Office. The Government Accountability Office is a department of the United States, and Defendants must produce a deponent from that department if that person has knowledge of the topic noticed. 6. Testimony Regarding Enlistment Waivers is Clearly Relevant Defendants claim that they do not have to produce a witness to provide testimony regarding enlistment waivers because that testimony is irrelevant. Defendants are mistaken. Military waivers are relevant to the purported rational basis of the policy: discipline. Defendants assert that success in combat requires military units that are characterized by high morale, good order and discipline. Plaintiff seeks testimony on the change in U.S. Army personnel policy promulgated since the invasions of Iraq and Afghanistan that permit felons to join the U.S. Army. See DEPT OF THE ARMY, ARMY REGULATION 601-210, at 4-27 (2007), available at http://www.army.mil/usapa/epubs/pdf/r601_210.pdf [hereinafter ARMY REGULATION - 12 LOSANGELES 855394 (2K)

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601-210]. The recruitment of felons and the waiver of their offenses previously unwaivable relate directly to the issue of whether discipline is a pretext to exclude law-abiding gay and lesbian service members from joining the United States Armed Forces. Because the topic is relevant to Defendants purported rational basis, Defendants must produce a witness to provide testimony on that topic. 7. Defendants Must Provide a Witness Because a Deposition is an Appropriate Method to Obtain the Evidence Sought by Plaintiff Defendants object to Paragraph 17, which seeks to identity the person(s) responsible for administering the policy. Defendants reason is that such matters can be more readily addressed through alternative, less burdensome forms of discovery, including interrogatories. Plaintiff disagrees; Defendants objection is improper for two reasons. First, this is not a valid objection. If the Federal Rules of Civil Procedure intended an alternative to deposition for convenience, it would have provided for one. See, e.g., Fed. R. Civ. P. 33(d) (permitting parties to submit business records in lieu of answers to interrogatories where the burden of gleaning the answer from the documents is substantially the same for either party). Second, this objection lacks credibility. It took longer for Defendants counsel to formulate and send a response to Plaintiffs Notice than it would have for a 30(b)(6) deponent to respond. For all the reasons described above, Plaintiff asks the Court to order Defendants to produce as many deponents as necessary to respond to Plaintiffs Notice of Deposition. III. NOTICE TO OPPOSING COUNSEL Pursuant to Local Rule 7-19, the names, address and telephone number of counsel for opposing parties, the United States of America and Secretary of Defense Robert Gates, are as follows: - 13 LOSANGELES 855394 (2K)

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PAUL G. FREEBORNE U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 E-mail: paul.freeborne@usdoj.gov Counsel for Plaintiff has provided notice of this ex parte application to opposing counsel, as explained in paragraph 4 of the accompanying Declaration of Patrick Hunnius. Defendants oppose the application. IV. CONCLUSION For the reasons set forth above, Plaintiff requests that this Court order Defendants to produce a deponent or deponents responsive to Plaintiffs Notice. Respectfully submitted, Dated: March 5, 2010 PATRICK HUNNIUS WHITE & CASE LLP

By: /s/ Patrick Hunnius Patrick Hunnius Attorneys for Plaintiff LOG CABIN REPUBLICANS

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DECLARATION OF PATRICK HUNNIUS I, Patrick Hunnius, say that: 1. I am an attorney licensed to practice law before this Court. I am a partner in the law firm of White & Case LLP, counsel for plaintiff Log Cabin Republicans (Plaintiff) in this action. I have personal knowledge of the following facts, and if called as a witness I could and would competently testify thereto. 2. On December 21, 2009, Plaintiff served on the United States of America and Robert M. Gates, Secretary of Defense (Defendants) a 30(b)(6) Notice of Deposition (Notice) to be taken on January 25, 2010 at the offices of Plaintiffs counsel in Washington, D.C.. The Notice described a variety of topics relevant to the general application of Dont Ask, Dont Tell (the Policy), the application of the Policy to different groups within the United States Armed Forces, and the effects of the application of the Policy. A copy of the Notice is attached hereto as Exhibit A. 3. Defendants failed to produce a witness on the date of the deposition. Four days later, Defendants sent Plaintiff a letter objecting to Plaintiffs Notice. A copy of the letter is attached hereto as Exhibit B. Defendants letter did not offer a later date at which to hold the deposition. 4. The parties met-and-conferred telephonically on February 9, 2010, but were unable to reach a satisfactory conclusion. 5. On February 11, 2010, I sent Defendants a letter suggesting the composition of a joint stipulation to be filed with the Court on March 1 or March 2. A copy of the letter is attached hereto as Exhibit C. 6. In the letter from February 11, I asked that Defendants respond to the proposed briefing schedule by February 17 in order assuming Defendants agreed to allow the parties to notify the Court of the briefing schedule. Id. 7. By February 17, I had not yet received a response from Defendants.

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DECLARATION OF PATRICK HUNNIUS

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8. I am now unable to file a joint stipulation on the matter as required by Local Rule 37-2.1, because the earliest hearing date permitted by Local Rule 37-3 would be April 2, beyond the discovery cutoff date. 9. On March 4, 2010, I notified Defendants by email of my intention to file an Ex Parte Application for Order Compelling Defendants to Comply with Log Cabin Republicans Notice of Deposition of United States of America and Secretary of Defense Robert M. Gates Pursuant to Federal Rule of Civil Procedure 30(b)(6). 10. By letter dated March 5, 2010, Defendants stated that they oppose this application. A copy of the letter is attached hereto as Exhibit D. 11. Attached as Exhibit E is an email I sent to Ryan Parker, counsel for the government, on March 5, 2010. I declare under penalty of perjury under the laws of the United States of America that foregoing is true and correct. Executed on March 5, 2010, at Los Angeles, CA.

/s/ Patrick Hunnius

-2LOSANGELES 855394 (2K)

DECLARATION OF PATRICK HUNNIUS

Case 2:04-cv-08425 Document 118-1 Filed 03/05/10 2 Pages

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DAN WOODS (SBN: 78638) PATRICK HUNNIUS (SBN: 174633) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: phunnius@whitecase.com Attorneys for Plaintiff LOG CABIN REPUBLICANS

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants. Case No. CV04-8425 VAP (Ex) [PROPOSED] ORDER GRANTING LOG CABIN REPUBLICANS EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH LOG CABIN REPUBLICANS NOTICE OF DEPOSITION OF USA AND ROBERT M. GATES PURSUANT TO FRCP 30(b)(6)

LOSANGELES 855401 (2K)

[PROPOSED] ORDER GRANTING PLAINTIFFS EX PARTE APPLICATION TO COMPEL DEFENDANTS TO COMPLY WITH NOTICE OF FRCP 30(b)(6) DEPOSITION

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On March 5, 2010, plaintiff Log Cabin Republicans (Plaintiff) submitted to the Court, the Hon. Virginia A. Phillips presiding, Plaintiffs ex parte application for an Order Compelling the United States of America and Robert M. Gates, Secretary of Defense (Defendants) to Comply With Log Cabin Republicans Notice of Deposition of the Defendants Pursuant to FRCP 30(b)(6) (the Ex Parte Application). Having considered the papers and evidence submitted by the parties, all other pleadings and records on file herein, and GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that the Ex Parte Application is GRANTED and Defendants are compelled to appear and attend their deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) within twenty (20) days of the issuance of this Order. IT IS SO ORDERED.

Dated: _________________

______________________________ Honorable Virginia A. Phillips United States District Judge

Respectfully Submitted by: WHITE & CASE LLP

By: /s/Patrick Hunnius Patrick Hunnius Attorney for Plaintiff Log Cabin Republicans

-2LOSANGELES 855401 (2K)

[PROPOSED] ORDER GRANTING PLAINTIFFS EX PARTE APPLICATION TO COMPEL DEFENDANTS TO COMPLY WITH NOTICE OF FRCP 30(b)(6) DEPOSITION

Case 2:04-cv-08425 Document 118-2 Filed 03/05/10 9 Pages

Exhibit A

Case 2:04-cv-08425 Document 118-3 Filed 03/05/10 7 Pages

Exhibit B

Case 2:04-cv-08425 Document 118-4 Filed 03/05/10 8 Pages

Exhibit C

Case 2:04-cv-08425 Document 118-5 Filed 03/05/10 5 Pages

Exhibit D

U.S. Department of Justice

Civil Division, Federal Programs Branch By First-Class Mail P.O. Box 883 Washington, D.C. 20044 By Special Delivery 20 Massachusetts Ave., NW Washington, D.C. 20001

Ryan B. Parker Trial Attorney

Tel: (202) 514-4336 Fax: (202) 616-8470 Email: ryan.parker@usdoj.gov

March 5, 2010 By Electronic Mail and First-Class Mail Patrick Hunnius White & Case, LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Re: Log Cabin Republicans v. U.S. et al.: Plaintiffs Proposed Ex Parte Applications

Patrick, I write to express the Governments opposition to Plaintiffs proposal to file ex parte applications seeking orders compelling discovery. Plaintiffs proposed ex parte applications contradict Plaintiffs counsels representations to Defense counsel and the Court, violate Judge Phillipss Standing Order, and lack legal support. At bottom, they appear to be attempts to circumvent the March 15 discovery deadline. If Plaintiff nonetheless decides to file its proposed applications, the Government respectfully that this letter, and the accompanying attachments, be submitted to the Court with Plaintiffs filing. I. Plaintiff Failed to Provide a Timely Joint Stipulation Regarding the 30(b)(6) Depostion

The process for resolving any dispute with respect to the 30(b)(6) deposition had been worked out by the parties. As part of that process, on Wednesday, March 3, 2010, Plaintiffs counsel emailed Defense counsel its portion of a JOINT STIPULATION IN SUPPORT OF: (1) PLAINTIFFS MOTION TO COMPEL DEPOSITION OF DEFENDANTS UNITED STATES OF AMERICA AND ROBERT M. GATES PURSUANT TO F.R.C.P. 30(b)(6); AND (2) DEFENDANTS MOTION FOR A PROTECTIVE ORDER. See Attachment 1 - Plaintiffs Email Sending Joint Stipulation; Attachment 2 - Plaintiffs Portion of the Joint Stipulation. In the introduction to Plaintiffs Portion of the Joint Stipulation (Plaintiffs Joint Stipulation), Plaintiff set forth the background for the cross motions indicating that a process for resolving the issues already was in place: On December 21, 2009, Plaintiff served on Defendants a 30(b)(6) Notice of Deposition (Notice) to be taken on January 25, 2010 at the offices of Plaintiffs counsel in Washington, D.C. On January 29, 2010, Defendants

objected to the Notice, via a letter to Plaintiffs counsel. The parties met-and-conferred telephonically regarding the Notice on February 9, 2010 but were unable to resolve their differences. At the conclusion of the conference, both parties maintained their respective contentions that they have grounds for a motion regarding the Notice (for Plaintiff, a motion to compel; for Defendants, a motion for a protective order) and agreed to brief these cross-motions through one Local Rule 37 joint stipulation. Attachment 2, pg. 1-2. There was indeed a meet and confer, and the agreement to brief the issue through cross motions was set forth more fully in a letter Plaintiffs counsel sent to Defense counsel on February 11, two days after the meet and confer. See Attachment 3- Plaintiffs Counsels February 11 Letter, pg 6. The schedule called for Plaintiff to send Defendants Plaintiffs portion of the required Joint Stipulation on February 22 and set an expedited briefing schedule based on the rapidly approaching March 15 discovery deadline. See Attachment 3, pg. 6. At the Status Conference, held on February 18, Plaintiffs counsel confirmed in open court that the 30(b)(6) issue would be briefed through motion practice: Plaintiffs Motion to Compel and Defendants Motion for a Protective Order. When Plaintiffs counsel failed to send Defendants Plaintiffs portion of the Joint Stipulation on February 22, as previously agreed. Defense counsel assumed that Plaintiffs counsel had decided to seek the requested information though other forms of discovery, as Plaintiff had asked for the same information in interrogatories, document requests, and requests for admission. On the evening of March 3, much after the agreed upon date, Plaintiffs counsel emailed Defense counsel Plaintiffs Joint Stipulation. See Attachment 2. The belated stipulation proposed a new briefing schedule, asking Defendants to provide their portion of the Joint Stipulation by March 11. Plaintiffs stipulation contained Plaintiffs legal arguments and nowhere alleged, nor could it in good faith, that Defense counsel had failed to cooperate in the parties agreement to brief the issue through cross motions. Rather, the stipulation indicated just the opposite: the parties had met-andconferred and Plaintiff was belatedly initiating the process that had been agreed upon. Just one day later, on March 4, Plaintiffs counsel sent Defense counsel an email explaining that Plaintiff intended to file an ex parte application seeking an order compelling the Government to designate a witness pursuant to the 30(b)(6) notice. See Attachment 4 - Plaintiffs counsels Email of March 4. In the email, Plaintiffs Counsel explained why he felt ex parte relief was necessary: Ex parte relief is necessary in light of: the rapidly approaching discovery cutoff; the government's failure to respond to Plaintiff's prior reasonable proposal to brief and hear these issues prior to the discovery cutoff; and the government's intransigent refusal to designate a witness on any topic specified in the Notice. Attachment 4 (emphasis added).

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Plaintiffs counsels March 4 email changes course and attempts to shift the blame to Defendants for Plaintiffs failure to follow the parties expedited briefing schedule. Plaintiffs counsels new position appears to be motivated by the Courts order on March 4 declining to extend the March 15 discovery deadline. Plaintiffs proposed ex parte application is inconsistent with Plaintiffs counsels representations to Defense counsel and the Court, and appears to be a bleated attempt to skirt the discovery deadline because Plaintiff is now out of time to proceed with a motion to compel. II. Plaintiff Failed to Bring a Timely Motion To Compel Regarding the RFAs

In his February 11 letter to Defense counsel, Plaintiffs counsel also explained Plaintiffs position that certain of Defendants responses to Plaintiffs Requests for Admission (the RFAs) are deficient. See Attachment 4. Following the Status Conference on February 18, Defense counsel approached Plaintiffs counsel about consolidating the potential discovery motions, including the motion regarding the RFAs, and seeking an extension of the discovery deadline to allow the parties to address those motions. Plaintiffs counsel rejected Defense Counsels proposal. But Plaintiff did not file a timely motion to compel regarding the RFAs or propose an expedited briefing schedule. Now, recognizing that the discovery cutoff will not be extended, Plaintiffs counsel has proposed seeking an ex parte application seeking an order deeming certain RFAs admitted. Plaintiffs counsels attempt to justify its need for an ex parte application by alleging that Defendants refused to meet and confer is unfounded. Plaintiffs counsels endeavor to shift the blame for its failure to file a timely motion is inappropriate. Ex parte applications are not meant to excuse parties who fail to bring timely motions. III. Plaintiffs Ex Parte Application Violates Judge Phillipss Standing Order and Lacks Legal Support

Judge Phillipss Standing Order advises that this Court allows ex parte applications solely for extraordinary relief. Docket Entry 68, pg 5. The order also directs counsel to become familiar with Mission Power Engineering Co. v. Continental Casualty, Co., 883 F.Supp. 488 (C.D. Cal. 1995). The Court in Mission Power provides an overview of the abuse of ex parte applications. It also reviews the stringent standard for showing that ex parte relief is necessary. First, the evidence must show that the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Id at 492. Second, it must be established that the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. Plaintiff can not make either of these showings with regard to the 30(b)(6) witness or the RFAs. Plaintiff has received the information it seeks from Defendants 30(b)(6) witness through other means of discovery and is unlikely to succeed on its motion to compel the deposition. Moreover, Plaintiff could have filed a timely motion to compel the deposition on February 22, as the parties had agreed, but failed to do so. With regard to the RFAs, Defendants objections and responses are sufficient and the information Plaintiff seeks is not central to its case. Furthermore, Plaintiff had the opportunity to being a timely motion to compel and did not do so.

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The Court in Mission Power ends its discussion of ex parte applications with a warning, Ex parte applications are not intended to save the day for parties who have failed to present requests when they should have. Id. (quoting Judge Rymer in In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D.Cal.1989)). Plaintiff has failed to present requests when it should have, and should not proceed in a manner contrary to the Courts warning. For the foregoing reasons, the Government opposes any effort by Plaintiff to proceed with ex parte applications. If Plaintiffs counsel nonetheless intends to proceed with its proposed applications, Defense counsel requests that Plaintiff include the Governments opposition to the applications and attach this letter and its accompanying exhibits. Respectfully,

Ryan B. Parker

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Case 2:04-cv-08425 Document 118-6 Filed 03/05/10 3 Pages

Exhibit E

Page 1 of 2

Hagan, Patrick
From: Sent: To: Cc: Hunnius, Patrick Friday, March 05, 2010 2:29 PM Parker, Ryan (CIV); Woods, Dan Freeborne, Paul (CIV); Garvey, Vincent (CIV); Hunt, Jody (CIV); Simpson, Scott (CIV)

Subject: RE: Log Cabin Republicans: Proposed Ex Parte Applications

Ryan, One of the exhibits you attached is a letter I sent Mr. Freeborne on February 11, in which Log Cabin Republicans "propose[d] that the parties agree to brief the cross-motions [regarding the 30(b)(6) deposition] on an expedited basis." (Emphasis added) Furthermore, the letter proposed a schedule and requested that the government "let me know by Wednesday if this schedule is agreeable." I never received any response to the proposal and no such response is attached to your email (below). In your letter to me dated today, however, you contend that the government "agreed" to the briefing schedule proposed by Log Cabin Republicans. See, e.g. (February 22nd was "previously agreed" to as the date by which Plaintiff would send its portion of a Joint Stipulation; February 22nd was the "agreed upon date" for Plaintiff's serving its portion of a Joint Stipulation.) We have received no written or oral communication from the government in which the government told us that it agreed to the proposal. Please let me know immediately when and in what form you contend the government indicated it agreed to the briefing schedule proposed in my February 11 letter. Patrick O. Hunnius
Telephone: + 213-620-7714 Mobile: + 818-205-4976

From: Parker, Ryan (CIV) [mailto:Ryan.Parker@usdoj.gov] Sent: Friday, March 05, 2010 11:20 AM To: Hunnius, Patrick; Woods, Dan Cc: Freeborne, Paul (CIV); Garvey, Vincent (CIV); Hunt, Jody (CIV); Simpson, Scott (CIV) Subject: Log Cabin Republicans: Proposed Ex Parte Applications

Patrick, Please find attached a letter, with attachments, setting forth the Governments opposition to your proposal to file ex parte applications. Best, Ryan B. Parker Trial Attorney

3/5/2010

Page 2 of 2

U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 tel 202-514-4336 fax 202-616-8470 ryan.parker@usdoj.gov

3/5/2010

Case 2:04-cv-08425 Document 118-7 Filed 03/05/10 3 Pages

Exhibit F

Page 1 of 2

Hagan, Patrick
From: Sent: To: Hunnius, Patrick Friday, March 05, 2010 3:39 PM Miller, Earle; Hagan, Patrick; Kahn, Aaron; Feldman, Rachel; Fujiu, Lauren; Hunnius, Patrick; Scott, Melanie C.; Woods, Dan

Subject: FW: Log Cabin Republicans: Proposed Ex Parte Applications

Patrick O. Hunnius
Telephone: + 213-620-7714 Mobile: + 818-205-4976

From: Freeborne, Paul (CIV) [mailto:Paul.Freeborne@usdoj.gov] Sent: Friday, March 05, 2010 3:26 PM To: Hunnius, Patrick; Parker, Ryan (CIV); Woods, Dan Cc: Garvey, Vincent (CIV); Hunt, Jody (CIV); Simpson, Scott (CIV) Subject: Re: Log Cabin Republicans: Proposed Ex Parte Applications Patrick, As you know, we agreed during the "meet and confer" on February 9th that plaintiff would initiate the stipulation process. You clearly understood that to be the case (i.e, we agreed to proceed through stipulation and crossmotion) as evidenced by the way you have proceeded (until now). Paul

From: Hunnius, Patrick <phunnius@la.whitecase.com> To: Parker, Ryan (CIV); Woods, Dan <dwoods@la.whitecase.com> Cc: Freeborne, Paul (CIV); Garvey, Vincent (CIV); Hunt, Jody (CIV); Simpson, Scott (CIV) Sent: Fri Mar 05 17:29:23 2010 Subject: RE: Log Cabin Republicans: Proposed Ex Parte Applications

Ryan, One of the exhibits you attached is a letter I sent Mr. Freeborne on February 11, in which Log Cabin Republicans "propose[d] that the parties agree to brief the cross-motions [regarding the 30(b)(6) deposition] on an expedited basis." (Emphasis added) Furthermore, the letter proposed a schedule and requested that the government "let me know by Wednesday if this schedule is agreeable." I never received any response to the proposal and no such response is attached to your email (below). In your letter to me dated today, however, you contend that the government "agreed" to the briefing schedule proposed by Log Cabin Republicans. See, e.g. (February 22nd was "previously agreed" to as the date by which Plaintiff would send its portion of a Joint Stipulation; February 22nd was the "agreed upon date" for Plaintiff's serving its portion of a

3/5/2010

Page 2 of 2

Joint Stipulation.) We have received no written or oral communication from the government in which the government told us that it agreed to the proposal. Please let me know immediately when and in what form you contend the government indicated it agreed to the briefing schedule proposed in my February 11 letter. Patrick O. Hunnius
Telephone: + 213-620-7714 Mobile: + 818-205-4976

From: Parker, Ryan (CIV) [mailto:Ryan.Parker@usdoj.gov] Sent: Friday, March 05, 2010 11:20 AM To: Hunnius, Patrick; Woods, Dan Cc: Freeborne, Paul (CIV); Garvey, Vincent (CIV); Hunt, Jody (CIV); Simpson, Scott (CIV) Subject: Log Cabin Republicans: Proposed Ex Parte Applications

Patrick, Please find attached a letter, with attachments, setting forth the Governments opposition to your proposal to file ex parte applications. Best, Ryan B. Parker Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 tel 202-514-4336 fax 202-616-8470 ryan.parker@usdoj.gov

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3/5/2010