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Jeffre A Lake Esq (State BarNo. 159234)
Kenndlth E. Johnson, Esq. (State Bar No 115814)
Erich R. Luschei, Es. (State Bar No. 125956)
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THEODORA ORINGHER MILLER & RICHMAN PC
2029 Century Park East, Sixth Floor
Los Angelcs, California 90067-2907
Telephone: (310) 557-2009
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Facs1mile: (310) 551-0283
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Stanley H. Green, Esq. (State Bar No. 41851)
STANLEY H. GREEN A LAW CORPORATION
468 N. Camden Drive, Second Floor
GARY M. BLAIR, Execut 9
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Attorneys for Contestant STEVEN PAPPAS
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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12 FOR THE COUNTY OF SANTA BARBARA ST
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IVIILIJ'IR
14 STEVEN PAPPAS, an individual, Case No. 1304851
15 Contestant, [Assigned for All Purposes to the Honorable
ORINGIII-JR
J. William McLafferty, Department 5]
16 vs.
17 DOREEN FARR, an individual, CONTESTANT’S OPPOSITION TO
DEFENDANT'S MOTION TO QUASH
THEODORA
18 Defendant. SUBPOENA DUCES TECUM ISSUED
TO THE UNIVERSITY OF
19 CALIFORNIA, SANTA BARBARA;
DECLARATION OF JEFFREY A.
20 LAKE; EXHIBITS THERETO
21
I,
Hearing Date: February/J, 2009
22 Hearing Time: -8:—l-5 a.m. “35M"
Place: Department 5
23
Trial Date: February 17, 2009
24
25
26
27
’28
738732.1/21992.05002
CONTESTANT'S OPPOSITION TO DEFENDANTS MOTION TO OU/ISH SUBPOEN/t DUCES I‘ECI/M
ISSUED TO THE UNIVERSITY OF CALIFORNII, SANTA BARBARA
__/
1. PRELIMINARY STATEMENT
Contestant Steve Pappas filed his petition and statement of election contest for two
reasons. First, thousands of illegal votes were cast in certain precincts, located inlsla Vista, in
the November 2008 election. Under the law, those illegal votes cannot be counted. Second,
the election officials in conducting the election and canvassing the returns made errors
sufficient to change the result of the election.
OKOOOQOUIADJN—
/
As part of his preparation for trial, Pappas issued two subpoenas requesting relevant
records. The first subpoena was issued to the Santa Barbara County Registrar of Voters (the
"Registrar"), requesting discovery of voter registration cards, and other relevant documents.
I’C Farr made no objection to this subpoena, nor to the fact that Pappas is entitled to engage in this
form of pre-trial discovery. Instead, Farr's counsel stipulated to a protective order that governs
RIC/[MAN
the documents produced by the Registrar, which was approved by the Court and entered on
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January 20, 2009.
MILLER
The second subpoena was issued to the University of California, Santa Barbara
("UCSB" or the "University"), on January 13, 2009. Two categories of documents were
ORINGIIER
requested: (1) documents pertaining to the on-campus registration drives, that resulted in
9,700 new registrations which in many cases violated mandatory provisions of the California
'I'IIEODORA NNNNNNNNp—AH—nfl—p—w—n—n
Elections Code; and (2) records showing the name, address, date of birth, and citizenship of
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current UCSB students. Farr's motion raises no objection to the first category of documents.
Presumably she recognizes that these documents are relevant to the issues at trial.
The instant motion to quash is directed solely at the second category of records
requested from UCSB. Farr's motion should be denied. The records are discoverable, and
relevant to trial, and will help prove the violations that tainted the election in the Isla Vista
precincts.
The student information was requested from UCSB because the vast majority of the
9,700 new registrants are UCSB students. The information requested is directly relevant to
eligibility to vote: a voter must be at least 18 years old; a United States citizen; and a resident
of the precinct in which he or she registers. The issue of whether specific voters satisfied
738732.1/2199205002
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CON'I‘ESTANT'S OPPOSITION TO DEFENDANT‘S MOTION TO UASH SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BA REAR/1
these eligibility requirements is directly relevant to whether their votes were illegal, and
should not have been counted in the election. In view of the evidence showing that the
registration forms submitted for these voters violated numerous provisions of the Elections
Code, combined with the evidence showing that the Registrar did not verify the eligibility or
OOOONOLIIAWN—n
identity of these newly registered voters as required by state and federal law, this discovery is
both appropriate and relevant to the issues raised in this proceeding.
Pappas anticipates that a comparison of the UCSB student records with the information
provided to the Registrar will show inconsistencies as to a substantial number ofthe newly
registered voters. Such inconsistencies mean one of two things: either the registrant is
PC ineligible to vote, or the information on the registration card was completed by a person other
than the voter. Either way, the vote would be illegal, and cannot properly be counted.
RICIIMAN
Counsel for Pappas and UCSB previously agreed upon a procedure that allows
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individual students to object to the production of their records. If a timely objection is made,
MILLER
Pappas has agreed that he has the burden of filing a motion to compel the records of any
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student who timely objects. In the absence of any objection, however, there is no legitimate
ORINGHER
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reason to quash the subpoena.
Production of the requested records is essential so that Pappas may complete his trial
preparation on these important issues, which are directly relevant to this proceeding. Farr's
THEODOKA
motion should be denied, since it represents nothing more than an attempt to delay for as long
as possible Pappas‘ ability to access relevant records which will help prove the violations that
permeated this election in the Isla Vista precincts.
22 II. STATEMENT OF FACTS
23 A. The UCSB Voter Registration Drives
24 The statutory violations at issue in this proceeding result from voter registration drives
25 conducted on the UCSB campus, between September 26, 2008, and October 20, 2008. More
26 than 9,700 voter registration forms were submitted to the Registrar of Voters by the partisan
27 organizations that conducted these registration drives. Virtually of the newly registered voters
28 are UCSB students.
738732.]!2199205002 2
CONTESTANT’S OPPOSITION T0 DEFENDANT’S MOTION TO UASH SUBI’OENA DUCES TECUM
ISSUED TO TIIE UNIVERSITY OF CALIFORNI ,SANTA BARB/IRA
Whatever the motivation of those conducting the drives, many of the new registrations
were not submitted until after the statutory deadline. In addition, many of the registration
cards omitted important information, required by the mandatory requirements of the California,
Elections Code. Because of the untimely submission, as well as failure to provide required
\OOOQOUIvD‘UJNb—
information, the Registrar failed to follow the verification procedures mandated by the federal
Help America Vote Act of 2002 ("HAVA"), 42 U.S.C. § 15301 et seq., or the California
regulations implementing the HAVA requirements. As a result, substantial questions exist as
to whether many of the newly registered voters were eligible to vote, and whether ballots were
cast by someone other than the voter.
PC The certified vote in the precincts for the area in which those drives were conducted
overwhelmingly differed from that in all other areas of the District. Excluding the Isla Vista
RIC/[MAN
precincts, Pappas won a majority of the vote by a wide margin. Within the disputed precincts,
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the Registrar reported that Farr won a substantial majority of the vote. Pappas contends that if
MILLER
the illegal votes are removed from the total, the corrected election results will show that he
won the election.I
ORINGIIER
B. The UCSB Subpoena
On January 13, 2009, Pappas issued a subpoena duces tecum to UCSB seeking the
TIIEODORA
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Farr's motion attempts to avoid this problem. Her motion simply asserts that student
records held by UCSB fall within the scope of Section 1985.3, without identifying any
statutory language to support that conclusion. (Motion at 5.) Her discussion of the issue is
limited to a very long footnote, which ultimately argues that the Legislature must have
3
Section 76244 states: "Information concerning a student shall be fumished in
compliance with a court order or a lawfully issued subpoena. The community college district
shall make a reasonable effort to notify the student in advance of compliance with a lawfully
issued subpoena and, in the case of compliance with a court order, if lawfully possible within
the requirements of the order." (Emphasis supplied.)
738732.1/21992.05002 7
CONTESTANT‘S OPPOSITION T0 DEFENDANT’S MOTION TO UASII SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA
somehow forgotten about the University of California when it drafted the very specific
statutory definition of a "witness" contained in Section 1985.3. (Id. at 5-6 fn. 1.)
Farr's argument should be rejected, because it would require the Court to disregard the
express statutory language of Section 1985.3. Student records are governed by Section 1985.3
only when held by a preschool, elementary or secondary school, or community college.
OOOOQOU‘ADJN—
Presumably the Legislature concluded that records held by four-year colleges and universities
are sufficiently protected by other laws, which specifically govern the disclosure of student
records held by such schools. Farr acknowledges the existence of these laws (Motion at 3),
and the record shows that UCSB counsel specifically requested a notification procedure
PC designed to comply with them. Had the Legislature intended that Section 1985.3 apply to
student records held by any school, it could easily have said so. Instead, the Legislature
RICIIMAN
carefully defined only certain categories of schools covered by the statute, which do not
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include the University of California system.
MILLER
Because the records requested by the subpoena do not fall within the definition of
"personal records" under Section 1985.3(a)(1), the statute does not apply. Fair's argument
ORINGHER
contradicts the express language of the statute, and should be rejected.
B. Although Not Required Bv Section 1985.3, An Agreed Upon i'otice And
I'HEODORA
Objection Procedure Has Been Put In Place To Protect Student Privacy
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And To Complv With Applicable Federal Laws
Notwithstanding the fact that the UCSB subpoena is not governed by Section 1985.3,
any concern over student privacy has been addressed by counsel for UCSB. UCSB's counsel
requested, and Pappas agreed, to put in place the following procedure for providing notice to
students and allowing students to object to the production of their records:
I On or about January 28, 2009, UCSB sent an e-mail communication to each of
its students, providing them with notice of the subpoena, and confirming that
objections may be made electronically within a 10 day period ;
0 Student objections submitted on or before February 9, 2009, will be deemed
timely; an
to 00
738732.1/2199205002 8
CONTESI'ANT’S OPPOSITION TO DEFENDANT’S MOTION TO UASH S UBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA
- UCSB will not provide information with res ect to any student making atimcly
objection. Pappas would have the burden 0 making a further motion to compel
the production of records from an objecting student.
(Lake Decl. fl 3; Exhibit "B.")
UCSB's counsel requested this procedure to satisfy the University's obligations under
federal student records laws. The motion acknowledges the existence and applicability of
\OOOQQUt-b-WN—
these federal laws, and apparently recognizes that the agreed-upon procedures do, in fact,
satisfy these laws. (Motion at 3.) No further notice is required, either by reason of Section
1985.3, or any other provision oflaw.
Farr's argument appears to be that Pappas should withdraw the current subpoena, and
PC issue a new subpoena with notice to each individual student. This is impractical. UCSB's
counsel concurred that there is no way for Pappas to individually notify all students, and
RICHMAN
advised defendant's counsel of same. (Lake Decl. 113; Exhibit B.) Accepting Farr's argument
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would be highly prejudicial to Pappas, since it would create undue delay and great expense,
MILLER
and because it would merely duplicate the notification previously provided.
Further protection of student privacy comes from the fact that Pappas has already
ORINGHER
agreed that a protective order may be entered, which will, inter alia, limit the use of the
NNNNNNNNND—‘i—‘b—lh—ir—‘b—‘b—Iy—Ir—Ib—l
student records to this litigation. (Exhibit B.) This Court has already entered such a
TIIEOIJORA
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protective order with respect to records produced by the Registrar of Voters. To date, Farr's
counsel has refused to agree to or otherwise comment substantively on the proposed protective
order, even though Farr agreed to the identical protective order with respect to Registrar
documents. In sum, the agreed upon notice and objection procedure, when combined with the
proposed protective order, adequately addresses any privacy concerns.
Farr asserts that a higher burden must be shown to warrant discovery here. (Motion,
pp. 9-10.) However, neither the California Constitution nor the decisions interpreting the right
to privacy require heightened scrutiny in all cases alleging an invasion of privacy interests by
a non-govemmental body. Hill v. National Collegiate Athletic Association (1994) 7 Cal. 4‘h 1,
34-35. Invasion of a privacy interest will bejustified by a legitimate interests that “derive
from legally authorized and socially beneficial activities of government and private entities”
738732.]l2l99205002 9
CONTESTANT'S OPPOSITION T0 DEFENDANT'S MOTION TO UASH SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA
(Id. at p. 38), such as ensuring compliance with the election laws as at issue in this case. This
is particularly true here because the parties have put in place certain processes to safeguard the
information, such as the 10-day notice period as well as the stipulated protective order. Id. at
pp. 52-54.
Farr also argues, without citing any authority or evidence, that students provided the
OO\)C7\UIJ>~WN
requested information under “compulsion,” and that they would reasonably expect that this
information would not be disclosed to third parties without a specific academic purpose.”
(Motion at 10, emphasis supplied.) Neither assertion makes any sense. There is no legal right
to attend college, thus college students cannot be said to have been coerced by the University
I’C 10 to provide the data. Id. at 43 (no legal right to participate in collegiate athletics). Further,
RICHMAN
ll F arr’s suggestion that there must be an “academic” purpose for the disclosure is wrong. By
12 registering to vote, students created a diminished expectation of privacy with respect to
K:
13 personal information relevant to voter eligibility, thereby warranting disclosure of the limited
MILLER
14 information sought. Id. at 42.4
15 Farr's true motivation in filing this motion can be seen in her strenuous argument that
ORINGHER
16 UCSB is somehow acting improperly by providing copies of the UCSB student objections to
17 counsel for the parties. (Motion at 14.) This should hardly be controversial. Under the notice
provision specified by Section 1985.3(g), which Farr claims is applicable, objections must be
THEODORA
18
19 submitted directly to the party who issues the subpoena; i.e., Pappas' counsel. In addition, all
20 a student has to communicate is "1 object" in order for the objection to be valid. Disclosure of
21 the content of an objection to the requesting party is a rudimentary requirement of due
22 process; otherwise the party has no way to determine whether the objection is valid.
23
4
24 Farr does not make a constitutional challenge on behalf of John and Jane Doe with
respect to the state’s right to check voter eligibility to safeguard the integrity of elections. Yet
25
the Calvalidator process intended for that purpose was not followed here due to the eirculators'
26 failure to submit voter registration applications on a timely basis. Farr thus ignores that it is
the very same relevant information that Pappas seeks here, pertaining to residency, age and
27
citizenship, that the Registrar should have reviewed to ensure the integrity of the election.
28
738732 ll21992.05002 1 0
CON7ESTANI"S OPPOSITION T0 DEFENDANT’S MOTION TO UASH SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA
The real reason that Farr objects on this point is because some students have voluntarily
stated something more in their "objection," and in so doing have disclosed facts which confirm
the election improprieties at issue in this proceeding. For example, some objecting students
have stated that they never voted in the election, when the Registrar's records show that a
ballot was cast in the student's name. Farr has no legitimate basis for objecting to the fact that
OOOOVOUItN—i
any student, or other non-party witness, has elected to disclose relevant information to Pappas'
counsel. The First Amendment protects the right of Pappas‘ counsel to communicate with
UCSB students or other non—party witnesses, as well as the right of the witness to
communicate with counsel. Farr's argument shows she is less concerned with student privacy,
PC and more concerned with sweeping electoral irregularities under the rug.
C. The UCSB Subpoena Identifies The Records Sought With Reasonable
RICHMAN
Particularitv And Is Not Impermissiblv Over Broad
If;
When the subpoena power is invoked, the good cause and materiality requirements of
MILLER
C.C.P. Section 1985 is to be governed by discovery standards. Associated Brewers
Distributing Company v. Superior Court ofLos Angeles County (1967) 65 Cal. 2d 583, 587.
0/(INGIIHR
The discovery statutes are intended, inter alia, to (1) give assistance to the parties in
ascertaining the truth, (2) provide a means of detecting and exposing false, fraudulent or sham
NNNNNNNNNw—n—o—a——..—.H—lp—n
claims, (3) make available facts that otherwise could not be provided, (4) safeguard against
THEODORA
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surprise, and (5) simplify and narrow the issues. Fuss v. Superior Court (1969) 273 Cal. App.
2d 807, 815-16. The object of discovery, however, is not merely the discovery of admissible
evidence, but also effective preparation for trial. Associated Brewers Distributing Company v.
Superior Court of Los Angeles County, supra, 65 Cal. 2d at 587. See also TBG Ins. Services
Corp. v. Superior Court (2002) 96 Cal. App. 4‘h 443, 448.
738732 ”2199105002 1 1
CONTES'I'ANT'S OPPOSITION 'I'O DEFENDANT'S MOTION TO UASH SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA
Any matter, not privileged, that is relevant to the subject matter of the action or appears
reasonably calculated to lead to the discovery of admissible evidence is discovprable.5
Relevance to the subject matter means evidence "having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action," and
extends to potential as well as actual issues in the case. Evidence Code § 210; Union Mut.
\OOOQOUI-t—n
Life Ins. Co. v. Superior Court (1978) 80 Cal. App. 3d 1, 10. The relevance standard must be
reasonably applied according to liberal policies favoring discovery. Pacific Tel. & Tel Co. v.
Superior Court, supra, 2 Cal. 3d at 173.6
Contrary to Farr's argument, the UCSB student information is not sought to "target and
PC ._i
O harass" students, or create a "threat of deportation," or any other improper purpose. (Motion
.—
’-‘
at 7, 10.) The subpoena requests only 3 items of information with respect to each student:
RIC/[MAN
—-
N address, date of birth, and citizenship. Each fact is directly relevant to eligibility to vote: A
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person is eligible to vote only if he or she is: (1) a United States citizen, (2) over 18 years old,
MILLER
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and (3) a resident ofthe precinct. See Cal. Const. art. 11, § 2; Cal. Elec. Code § 321. Pappas
._.
M has not requested other types of personal information, such as telephone numbers or social
ORINGHI'JR
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security numbers.
._. \I Evidence of whether a particular voter is a US. citizen, or otherwise qualified to vote,
TIIEODORA
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00
is directly relevant to this proceeding and will be admissible at trial. If voter was not in fact a
.— \D US. citizen, the vote is illegal and may not be counted. See, e.g., Preston v. Culbertson
NO (1881) 58 Cal. 198, 208 ("It was not error to receive evidence with respect to the question of
NH whether [voters] were citizens of the United States. The inquiry was not simply whether they
NN were registered, but whether they were, in other respects, qualified voters").
N DJ
5
NA The discoverability of information does not depend on its admissibility at trial. Valley
Bank ofNevada v. Superior Court(l975) 15 Cal. 3d 652, 655-56. See also Pacg’ic Tel. & Tel
N LII Co. v. Superior Court (1970) 2 Cal. 3d 161, 169.
6
Xx)
G Objections to discovery should be resolved, whenever possible, through protective
orders addressing the specific harm shown, rather than by attacks on relevancy. Norton v.
N \l
Superior Court (1994) 24 Cal. App. 4‘h 1750, 1761.
N 00
738732.1/2199205002
12
CON‘I'ESTAN'I"S OPPOSITION TO DEFENDANT’S MO’ITON TO QUASH SUBPOENA DUCES TECUM
ISSUED TO THE UNIVERSITY OF CALIFORNIA, SANTA BARBARA
Farr spends much time arguing that citizenship records should not be requested, citing
cases that have nothing to do with elections nor eligibility to vote. For example, Farr relies
upon wage and hour cases brought under the Fair Labor Standards Act, which hold that an
employer may not raise lack of citizenship as a defense to an employee's suit for unpaid
OOONONLh-PLANH
wages.7 (Motion at 10-1 1.) Such cases are readily distinguishable, because they simply hold
that non-citizen employees are fully entitled to wage payments for their work. Citizenship
may be irrelevant to an employee wage claim, but it is an essential prerequisite to voter
eligibility.
Farr's further objection that the UCSB subpoena constitutes a "fishing expedition" is
PC misguided. The records sought by the UCSB subpoena pertain to issues directly relevant to
the determination of whether illegal or invalid Votes were cast in the election.
RIC/[MAN
Notwithstanding, Farr's cry of a "fishing expedition" is not sufficient to preclude Pappas from
&
inquiring into facts germane to the dispute, since "fishing expeditions" are permissible in some
MILLER
4‘'1
cases. See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 1006, 1013;
4‘'1
Gonzales v. Superior Court (1995) 33 Cal. App. 1539, 1546.
ORINGIIER
Farr's claim that the subpoena is overbroad should also be rejected. The Registrar has
NNNNNNNNNfli—‘F—‘F—‘D—‘I—Ir—‘r—Ib—ly—l
recently produced the records which contain the names of the 9,700 individuals registered in
TIIEODORA
the UCSB voting drives. Pappas has no objection to narrowing the scop
Preview
{,7 v “w" ’W' tq Jeffre A Lake Esq (State BarNo. 159234) Kenndlth E. Johnson, Esq. (State Bar No 115814) Erich R. Luschei, Es. (State Bar No. 125956) 0 R I 6' NA L THEODORA ORINGHER MILLER & RICHMAN PC 2029 Century Park East, Sixth Floor Los Angelcs, California 90067-2907 Telephone: (310) 557-2009 Fl LE DF0 e Facs1mile: (310) 551-0283 “Wof Supgfisfilcogm FINIA at?“ [E OO\IO\LI‘4>L»JN F EB fl 9 2009 , F V: Stanley H. Green, Esq. (State Bar No. 41851) STANLEY H. GREEN A LAW CORPORATION 468 N. Camden Drive, Second Floor GARY M. BLAIR, Execut 9 ~I~' ice DX h' ev Ca V __. Beverly Hills, CA 90210 Telephone: (310) 285-1753 Facsmile (310) 2851752 NAHZF‘ALU KSHv Deputy CI rk CA ~ _ Attorneys for Contestant STEVEN PAPPAS FIN J PW _ __ PC RIC/[MAN 1o 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA ATI’ COD _ 12 FOR THE COUNTY OF SANTA BARBARA ST & 1’3 IVIILIJ'IR 14 STEVEN PAPPAS, an individual, Case No. 1304851 15 Contestant, [Assigned for All Purposes to the Honorable ORINGIII-JR J. William McLafferty, Department 5] 16 vs. 17 DOREEN FARR, an individual, CONTESTANT’S OPPOSITION TO DEFENDANT'S MOTION TO QUASH THEODORA 18 Defendant. SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF 19 CALIFORNIA, SANTA BARBARA; DECLARATION OF JEFFREY A. 20 LAKE; EXHIBITS THERETO 21 I, Hearing Date: February/J, 2009 22 Hearing Time: -8:—l-5 a.m. “35M" Place: Department 5 23 Trial Date: February 17, 2009 24 25 26 27 ’28 738732.1/21992.05002 CONTESTANT'S OPPOSITION TO DEFENDANTS MOTION TO OU/ISH SUBPOEN/t DUCES I‘ECI/M ISSUED TO THE UNIVERSITY OF CALIFORNII, SANTA BARBARA __/ 1. PRELIMINARY STATEMENT Contestant Steve Pappas filed his petition and statement of election contest for two reasons. First, thousands of illegal votes were cast in certain precincts, located inlsla Vista, in the November 2008 election. Under the law, those illegal votes cannot be counted. Second, the election officials in conducting the election and canvassing the returns made errors sufficient to change the result of the election. OKOOOQOUIADJN— / As part of his preparation for trial, Pappas issued two subpoenas requesting relevant records. The first subpoena was issued to the Santa Barbara County Registrar of Voters (the "Registrar"), requesting discovery of voter registration cards, and other relevant documents. I’C Farr made no objection to this subpoena, nor to the fact that Pappas is entitled to engage in this form of pre-trial discovery. Instead, Farr's counsel stipulated to a protective order that governs RIC/[MAN the documents produced by the Registrar, which was approved by the Court and entered on & January 20, 2009. MILLER The second subpoena was issued to the University of California, Santa Barbara ("UCSB" or the "University"), on January 13, 2009. Two categories of documents were ORINGIIER requested: (1) documents pertaining to the on-campus registration drives, that resulted in 9,700 new registrations which in many cases violated mandatory provisions of the California 'I'IIEODORA NNNNNNNNp—AH—nfl—p—w—n—n Elections Code; and (2) records showing the name, address, date of birth, and citizenship of OO\!O\UIJ>WN~O\COO\IC\UIJ>UJNt—- current UCSB students. Farr's motion raises no objection to the first category of documents. Presumably she recognizes that these documents are relevant to the issues at trial. The instant motion to quash is directed solely at the second category of records requested from UCSB. Farr's motion should be denied. The records are discoverable, and relevant to trial, and will help prove the violations that tainted the election in the Isla Vista precincts. The student information was requested from UCSB because the vast majority of the 9,700 new registrants are UCSB students. The information requested is directly relevant to eligibility to vote: a voter must be at least 18 years old; a United States citizen; and a resident of the precinct in which he or she registers. The issue of whether specific voters satisfied 738732.1/2199205002 L CON'I‘ESTANT'S OPPOSITION TO DEFENDANT‘S MOTION TO UASH SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BA REAR/1 these eligibility requirements is directly relevant to whether their votes were illegal, and should not have been counted in the election. In view of the evidence showing that the registration forms submitted for these voters violated numerous provisions of the Elections Code, combined with the evidence showing that the Registrar did not verify the eligibility or OOOONOLIIAWN—n identity of these newly registered voters as required by state and federal law, this discovery is both appropriate and relevant to the issues raised in this proceeding. Pappas anticipates that a comparison of the UCSB student records with the information provided to the Registrar will show inconsistencies as to a substantial number ofthe newly registered voters. Such inconsistencies mean one of two things: either the registrant is PC ineligible to vote, or the information on the registration card was completed by a person other than the voter. Either way, the vote would be illegal, and cannot properly be counted. RICIIMAN Counsel for Pappas and UCSB previously agreed upon a procedure that allows & individual students to object to the production of their records. If a timely objection is made, MILLER Pappas has agreed that he has the burden of filing a motion to compel the records of any N._._.._.._‘._.._.._-._.._.._- student who timely objects. In the absence of any objection, however, there is no legitimate ORINGHER OOOOQGUIAwNH reason to quash the subpoena. Production of the requested records is essential so that Pappas may complete his trial preparation on these important issues, which are directly relevant to this proceeding. Farr's THEODOKA motion should be denied, since it represents nothing more than an attempt to delay for as long as possible Pappas‘ ability to access relevant records which will help prove the violations that permeated this election in the Isla Vista precincts. 22 II. STATEMENT OF FACTS 23 A. The UCSB Voter Registration Drives 24 The statutory violations at issue in this proceeding result from voter registration drives 25 conducted on the UCSB campus, between September 26, 2008, and October 20, 2008. More 26 than 9,700 voter registration forms were submitted to the Registrar of Voters by the partisan 27 organizations that conducted these registration drives. Virtually of the newly registered voters 28 are UCSB students. 738732.]!2199205002 2 CONTESTANT’S OPPOSITION T0 DEFENDANT’S MOTION TO UASH SUBI’OENA DUCES TECUM ISSUED TO TIIE UNIVERSITY OF CALIFORNI ,SANTA BARB/IRA Whatever the motivation of those conducting the drives, many of the new registrations were not submitted until after the statutory deadline. In addition, many of the registration cards omitted important information, required by the mandatory requirements of the California, Elections Code. Because of the untimely submission, as well as failure to provide required \OOOQOUIvD‘UJNb— information, the Registrar failed to follow the verification procedures mandated by the federal Help America Vote Act of 2002 ("HAVA"), 42 U.S.C. § 15301 et seq., or the California regulations implementing the HAVA requirements. As a result, substantial questions exist as to whether many of the newly registered voters were eligible to vote, and whether ballots were cast by someone other than the voter. PC The certified vote in the precincts for the area in which those drives were conducted overwhelmingly differed from that in all other areas of the District. Excluding the Isla Vista RIC/[MAN precincts, Pappas won a majority of the vote by a wide margin. Within the disputed precincts, & the Registrar reported that Farr won a substantial majority of the vote. Pappas contends that if MILLER the illegal votes are removed from the total, the corrected election results will show that he won the election.I ORINGIIER B. The UCSB Subpoena On January 13, 2009, Pappas issued a subpoena duces tecum to UCSB seeking the TIIEODORA NNNNNNNNNHHHHH~DJN’—‘O\OOO\IC\MJ>~WN—‘ Farr's motion attempts to avoid this problem. Her motion simply asserts that student records held by UCSB fall within the scope of Section 1985.3, without identifying any statutory language to support that conclusion. (Motion at 5.) Her discussion of the issue is limited to a very long footnote, which ultimately argues that the Legislature must have 3 Section 76244 states: "Information concerning a student shall be fumished in compliance with a court order or a lawfully issued subpoena. The community college district shall make a reasonable effort to notify the student in advance of compliance with a lawfully issued subpoena and, in the case of compliance with a court order, if lawfully possible within the requirements of the order." (Emphasis supplied.) 738732.1/21992.05002 7 CONTESTANT‘S OPPOSITION T0 DEFENDANT’S MOTION TO UASII SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA somehow forgotten about the University of California when it drafted the very specific statutory definition of a "witness" contained in Section 1985.3. (Id. at 5-6 fn. 1.) Farr's argument should be rejected, because it would require the Court to disregard the express statutory language of Section 1985.3. Student records are governed by Section 1985.3 only when held by a preschool, elementary or secondary school, or community college. OOOOQOU‘ADJN— Presumably the Legislature concluded that records held by four-year colleges and universities are sufficiently protected by other laws, which specifically govern the disclosure of student records held by such schools. Farr acknowledges the existence of these laws (Motion at 3), and the record shows that UCSB counsel specifically requested a notification procedure PC designed to comply with them. Had the Legislature intended that Section 1985.3 apply to student records held by any school, it could easily have said so. Instead, the Legislature RICIIMAN carefully defined only certain categories of schools covered by the statute, which do not & include the University of California system. MILLER Because the records requested by the subpoena do not fall within the definition of "personal records" under Section 1985.3(a)(1), the statute does not apply. Fair's argument ORINGHER contradicts the express language of the statute, and should be rejected. B. Although Not Required Bv Section 1985.3, An Agreed Upon i'otice And I'HEODORA Objection Procedure Has Been Put In Place To Protect Student Privacy NMNNNNNNwHHH—‘Hflfl NOMJ>WN~OOOOQQMAL~N~ And To Complv With Applicable Federal Laws Notwithstanding the fact that the UCSB subpoena is not governed by Section 1985.3, any concern over student privacy has been addressed by counsel for UCSB. UCSB's counsel requested, and Pappas agreed, to put in place the following procedure for providing notice to students and allowing students to object to the production of their records: I On or about January 28, 2009, UCSB sent an e-mail communication to each of its students, providing them with notice of the subpoena, and confirming that objections may be made electronically within a 10 day period ; 0 Student objections submitted on or before February 9, 2009, will be deemed timely; an to 00 738732.1/2199205002 8 CONTESI'ANT’S OPPOSITION TO DEFENDANT’S MOTION TO UASH S UBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA - UCSB will not provide information with res ect to any student making atimcly objection. Pappas would have the burden 0 making a further motion to compel the production of records from an objecting student. (Lake Decl. fl 3; Exhibit "B.") UCSB's counsel requested this procedure to satisfy the University's obligations under federal student records laws. The motion acknowledges the existence and applicability of \OOOQQUt-b-WN— these federal laws, and apparently recognizes that the agreed-upon procedures do, in fact, satisfy these laws. (Motion at 3.) No further notice is required, either by reason of Section 1985.3, or any other provision oflaw. Farr's argument appears to be that Pappas should withdraw the current subpoena, and PC issue a new subpoena with notice to each individual student. This is impractical. UCSB's counsel concurred that there is no way for Pappas to individually notify all students, and RICHMAN advised defendant's counsel of same. (Lake Decl. 113; Exhibit B.) Accepting Farr's argument & would be highly prejudicial to Pappas, since it would create undue delay and great expense, MILLER and because it would merely duplicate the notification previously provided. Further protection of student privacy comes from the fact that Pappas has already ORINGHER agreed that a protective order may be entered, which will, inter alia, limit the use of the NNNNNNNNND—‘i—‘b—lh—ir—‘b—‘b—Iy—Ir—Ib—l student records to this litigation. (Exhibit B.) This Court has already entered such a TIIEOIJORA WVOMhWNHOOOOQONm-AWN—‘O protective order with respect to records produced by the Registrar of Voters. To date, Farr's counsel has refused to agree to or otherwise comment substantively on the proposed protective order, even though Farr agreed to the identical protective order with respect to Registrar documents. In sum, the agreed upon notice and objection procedure, when combined with the proposed protective order, adequately addresses any privacy concerns. Farr asserts that a higher burden must be shown to warrant discovery here. (Motion, pp. 9-10.) However, neither the California Constitution nor the decisions interpreting the right to privacy require heightened scrutiny in all cases alleging an invasion of privacy interests by a non-govemmental body. Hill v. National Collegiate Athletic Association (1994) 7 Cal. 4‘h 1, 34-35. Invasion of a privacy interest will bejustified by a legitimate interests that “derive from legally authorized and socially beneficial activities of government and private entities” 738732.]l2l99205002 9 CONTESTANT'S OPPOSITION T0 DEFENDANT'S MOTION TO UASH SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA (Id. at p. 38), such as ensuring compliance with the election laws as at issue in this case. This is particularly true here because the parties have put in place certain processes to safeguard the information, such as the 10-day notice period as well as the stipulated protective order. Id. at pp. 52-54. Farr also argues, without citing any authority or evidence, that students provided the OO\)C7\UIJ>~WN requested information under “compulsion,” and that they would reasonably expect that this information would not be disclosed to third parties without a specific academic purpose.” (Motion at 10, emphasis supplied.) Neither assertion makes any sense. There is no legal right to attend college, thus college students cannot be said to have been coerced by the University I’C 10 to provide the data. Id. at 43 (no legal right to participate in collegiate athletics). Further, RICHMAN ll F arr’s suggestion that there must be an “academic” purpose for the disclosure is wrong. By 12 registering to vote, students created a diminished expectation of privacy with respect to K: 13 personal information relevant to voter eligibility, thereby warranting disclosure of the limited MILLER 14 information sought. Id. at 42.4 15 Farr's true motivation in filing this motion can be seen in her strenuous argument that ORINGHER 16 UCSB is somehow acting improperly by providing copies of the UCSB student objections to 17 counsel for the parties. (Motion at 14.) This should hardly be controversial. Under the notice provision specified by Section 1985.3(g), which Farr claims is applicable, objections must be THEODORA 18 19 submitted directly to the party who issues the subpoena; i.e., Pappas' counsel. In addition, all 20 a student has to communicate is "1 object" in order for the objection to be valid. Disclosure of 21 the content of an objection to the requesting party is a rudimentary requirement of due 22 process; otherwise the party has no way to determine whether the objection is valid. 23 4 24 Farr does not make a constitutional challenge on behalf of John and Jane Doe with respect to the state’s right to check voter eligibility to safeguard the integrity of elections. Yet 25 the Calvalidator process intended for that purpose was not followed here due to the eirculators' 26 failure to submit voter registration applications on a timely basis. Farr thus ignores that it is the very same relevant information that Pappas seeks here, pertaining to residency, age and 27 citizenship, that the Registrar should have reviewed to ensure the integrity of the election. 28 738732 ll21992.05002 1 0 CON7ESTANI"S OPPOSITION T0 DEFENDANT’S MOTION TO UASH SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA The real reason that Farr objects on this point is because some students have voluntarily stated something more in their "objection," and in so doing have disclosed facts which confirm the election improprieties at issue in this proceeding. For example, some objecting students have stated that they never voted in the election, when the Registrar's records show that a ballot was cast in the student's name. Farr has no legitimate basis for objecting to the fact that OOOOVOUItN—i any student, or other non-party witness, has elected to disclose relevant information to Pappas' counsel. The First Amendment protects the right of Pappas‘ counsel to communicate with UCSB students or other non—party witnesses, as well as the right of the witness to communicate with counsel. Farr's argument shows she is less concerned with student privacy, PC and more concerned with sweeping electoral irregularities under the rug. C. The UCSB Subpoena Identifies The Records Sought With Reasonable RICHMAN Particularitv And Is Not Impermissiblv Over Broad If; When the subpoena power is invoked, the good cause and materiality requirements of MILLER C.C.P. Section 1985 is to be governed by discovery standards. Associated Brewers Distributing Company v. Superior Court ofLos Angeles County (1967) 65 Cal. 2d 583, 587. 0/(INGIIHR The discovery statutes are intended, inter alia, to (1) give assistance to the parties in ascertaining the truth, (2) provide a means of detecting and exposing false, fraudulent or sham NNNNNNNNNw—n—o—a——..—.H—lp—n claims, (3) make available facts that otherwise could not be provided, (4) safeguard against THEODORA WNGMAwN—‘OOOOVQLAJi-WNH surprise, and (5) simplify and narrow the issues. Fuss v. Superior Court (1969) 273 Cal. App. 2d 807, 815-16. The object of discovery, however, is not merely the discovery of admissible evidence, but also effective preparation for trial. Associated Brewers Distributing Company v. Superior Court of Los Angeles County, supra, 65 Cal. 2d at 587. See also TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal. App. 4‘h 443, 448. 738732 ”2199105002 1 1 CONTES'I'ANT'S OPPOSITION 'I'O DEFENDANT'S MOTION TO UASH SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNI , SANTA BARBARA Any matter, not privileged, that is relevant to the subject matter of the action or appears reasonably calculated to lead to the discovery of admissible evidence is discovprable.5 Relevance to the subject matter means evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," and extends to potential as well as actual issues in the case. Evidence Code § 210; Union Mut. \OOOQOUI-t—n Life Ins. Co. v. Superior Court (1978) 80 Cal. App. 3d 1, 10. The relevance standard must be reasonably applied according to liberal policies favoring discovery. Pacific Tel. & Tel Co. v. Superior Court, supra, 2 Cal. 3d at 173.6 Contrary to Farr's argument, the UCSB student information is not sought to "target and PC ._i O harass" students, or create a "threat of deportation," or any other improper purpose. (Motion .— ’-‘ at 7, 10.) The subpoena requests only 3 items of information with respect to each student: RIC/[MAN —- N address, date of birth, and citizenship. Each fact is directly relevant to eligibility to vote: A & .— L») person is eligible to vote only if he or she is: (1) a United States citizen, (2) over 18 years old, MILLER ,__. J>~ and (3) a resident ofthe precinct. See Cal. Const. art. 11, § 2; Cal. Elec. Code § 321. Pappas ._. M has not requested other types of personal information, such as telephone numbers or social ORINGHI'JR »—. C\ security numbers. ._. \I Evidence of whether a particular voter is a US. citizen, or otherwise qualified to vote, TIIEODORA »—- 00 is directly relevant to this proceeding and will be admissible at trial. If voter was not in fact a .— \D US. citizen, the vote is illegal and may not be counted. See, e.g., Preston v. Culbertson NO (1881) 58 Cal. 198, 208 ("It was not error to receive evidence with respect to the question of NH whether [voters] were citizens of the United States. The inquiry was not simply whether they NN were registered, but whether they were, in other respects, qualified voters"). N DJ 5 NA The discoverability of information does not depend on its admissibility at trial. Valley Bank ofNevada v. Superior Court(l975) 15 Cal. 3d 652, 655-56. See also Pacg’ic Tel. & Tel N LII Co. v. Superior Court (1970) 2 Cal. 3d 161, 169. 6 Xx) G Objections to discovery should be resolved, whenever possible, through protective orders addressing the specific harm shown, rather than by attacks on relevancy. Norton v. N \l Superior Court (1994) 24 Cal. App. 4‘h 1750, 1761. N 00 738732.1/2199205002 12 CON‘I'ESTAN'I"S OPPOSITION TO DEFENDANT’S MO’ITON TO QUASH SUBPOENA DUCES TECUM ISSUED TO THE UNIVERSITY OF CALIFORNIA, SANTA BARBARA Farr spends much time arguing that citizenship records should not be requested, citing cases that have nothing to do with elections nor eligibility to vote. For example, Farr relies upon wage and hour cases brought under the Fair Labor Standards Act, which hold that an employer may not raise lack of citizenship as a defense to an employee's suit for unpaid OOONONLh-PLANH wages.7 (Motion at 10-1 1.) Such cases are readily distinguishable, because they simply hold that non-citizen employees are fully entitled to wage payments for their work. Citizenship may be irrelevant to an employee wage claim, but it is an essential prerequisite to voter eligibility. Farr's further objection that the UCSB subpoena constitutes a "fishing expedition" is PC misguided. The records sought by the UCSB subpoena pertain to issues directly relevant to the determination of whether illegal or invalid Votes were cast in the election. RIC/[MAN Notwithstanding, Farr's cry of a "fishing expedition" is not sufficient to preclude Pappas from & inquiring into facts germane to the dispute, since "fishing expeditions" are permissible in some MILLER 4‘'1 cases. See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 1006, 1013; 4‘'1 Gonzales v. Superior Court (1995) 33 Cal. App. 1539, 1546. ORINGIIER Farr's claim that the subpoena is overbroad should also be rejected. The Registrar has NNNNNNNNNfli—‘F—‘F—‘D—‘I—Ir—‘r—Ib—ly—l recently produced the records which contain the names of the 9,700 individuals registered in TIIEODORA the UCSB voting drives. Pappas has no objection to narrowing the scop