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PLAINTIFFS RESPONSE TO BLAGS MOTION FOR LEAVE

CASE

NO

.3:10-

CV-0257-JSW

JAMES R. MCGUIRE (CA SBN 189275)[email protected] P. DRESSER (CA SBN 136532)[email protected] F. LIN (CA SBN 236220)[email protected] D. JONES (CA SBN 248246)[email protected] & FOERSTER LLP425 Market StreetSan Francisco, California 94105-2482Telephone: 415.268.7000Facsimile: 415.268.7522

JON W. DAVIDSON (CA SBN 89301)[email protected] L. SOMMER (pro hac vice)[email protected] L. BORELLI (CA SBN 216961)

[email protected] LEGAL DEFENSE AND EDUCATION FUND, INC.3325 Wilshire Boulevard, Suite 1300Los Angeles, California 90010-1729Telephone: 213.382.7600Facsimile: 213.351.6050

Attorneys for PlaintiffKAREN GOLINSKI

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

KAREN GOLINSKI,

Plaintiff,

v.

UNITED STATES OFFICE OF PERSONNEL

MANAGEMENT, and JOHN BERRY, Directorof the United States Office of PersonnelManagement, in his official capacity,

Defendants.

Case No. 3:10-cv-0257-JSW

PLAINTIFF KAREN GOLINSKISRESPONSE TO BIPARTISANLEGAL ADVISORY GROUPSMOTION FOR LEAVE TO FILESUPERSEDING OPPOSITION TO

PLAINTIFFS SUMMARYJUDGMENT MOTION, ANDREQUEST FOR ANY NEWHEARING DATE TO BE SET FORDECEMBER 16, 2011 OR EARLIER

Case3:10-cv-00257-JSW Document169 Filed09/30/11 Page1 of 3

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CASE NO.3:10-CV-0257-JSW

1

Plaintiff Karen Golinski respectfully submits the following response to Intervenor

Bipartisan Legal Advisory Groups (BLAGs) motion for leave to submit further briefing.

Plaintiff submits this response in order to propose measures to minimize the delay caused by

BLAGs belated request.

On Friday, September 23, 2011, BLAG informed plaintiff that it proposed to submit a

superseding opposition brief on October 10, 2011. (Borelli Decl. 4, Ex. A.) That proposal

came at the eleventh hour. (Borelli Decl. 5.) Plaintiffs motion for summary judgment was

originally noticed for September 16, 2011, and is set to be heard on October 21, 2011. Plaintiff

originally filed her motion on July 1, 2011. BLAG has had that brief for over three months.

BLAG makes much of the parties exchange of written discovery. However, BLAG has

had plaintiffs discovery responses since September 1, 2011. (Borelli Decl. 3.) Moreover,

plaintiff suspects that the materials that BLAG plans to introduce in its opposition brief are not

from that discovery, which principally concerned plaintiffs standing to bring this action and the

validity of her marriage. Instead, based on a review of BLAGs summary judgment opposition

papers filed in Windsor v. United States, No. 1:10-cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen

v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), plaintiff suspects that

the principal new evidence that BLAG plans to introduce here is the deposition testimony of

plaintiffs experts. (Borelli Decl. 5.) Those depositions were taken inJune andJuly, prior to

the due date of BLAGs existing opposition brief. (Id.) Discovery in Windsorclosed on July

11, 2011. (See Dkt. 121, Ex. B (attaching Windsorscheduling order).) BLAG has no legitimate

reason to have delayed its submission forthree monthsto incorporate those materials.

Nonetheless, in order to permit a full airing of the issues, plaintiff informed BLAG that

she was willing to accede to BLAGs belated filing of a new brief, provided that plaintiff has a

fair opportunity to respond and that the hearing date for all pending dispositive motions would

be moved appropriately. (Borelli Decl. 6, Ex. B.) Because one of plaintiffs experts is out of

the country until October 20, 2011, and that expert may be needed to provide rebuttal testimony,

plaintiff stated that she would need until November 1, 2011 to file her reply brief, if BLAG files

its new opposition brief on October 11, 2011. Although this briefing schedule creates a


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CASE

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.3:10-

CV-0257-JSW

2

significant disparity, as BLAG will have had plaintiffs brief for over three months, while

plaintiff will have only three weeks to reply, plaintiff is willing to tolerate that disparity in order

to move this matter promptly to resolution. (Id.) BLAG agreed to that proposal, but when the

parties disagreed as to the form of the filing BLAG changed its position, indicating that it would

only move for leave to file its superseding brief without proposing the parties agreed briefing

dates. (Borelli Decl. 7-14, Exs. C-J.)

Plaintiff is anxious to have this matter proceed to a merits determination. Her spouse

remains underinsured and continues to forgo preventive care. This case was filed almost two

years ago, in January 2010. The operative complaint has been on file for six months, since

April 2011. In order to permit the case to move forward, plaintiff respectfully requests that:

(1) BLAGs new opposition brief be due on October 11, 2011, and plaintiffs reply brief be due

on November 1, 2011, as the parties had agreed, and (2) that the hearing currently set for

October 21, 2011, on the motions to dismiss and plaintiffs motion for summary judgment be

continued to a date on or before December 16, 2011 (currently shown as the earliest available

open date on the Courts calendar for cases with a terminal digit of 7).

Dated: September 30, 2011 MORRISON & FOERSTER LLP

LAMBDA LEGAL DEFENSE ANDEDUCATION FUND, INC.

By: /s/ Tara BorelliTara Borelli



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DECLARATION OF TARA BORELLI IN SUPPORT OF PLAINTIFFS RESPONSE TO BLAGS MOTION

CASE

NO

.3:10-

CV-0257-JSW








KAREN GOLINSKI,

Plaintiff,

v.



Defendants.


DECLARATION OF TARA BORELLIIN SUPPORT OF PLAINTIFFKAREN GOLINSKIS RESPONSE TOBIPARTISAN LEGAL ADVISORYGROUPS MOTION FOR LEAVE TO

FILE SUPERSEDING OPPOSITIONTO PLAINTIFFS SUMMARYJUDGMENT MOTION, ANDREQUEST FOR ANY NEWHEARING DATE TO BE SET FORDECEMBER 16, 2011 OR EARLIER

Case3:10-cv-00257-JSW Document169-1 Filed09/30/11 Page1 of 4

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1

I, Tara Borelli, hereby declare and state as follows:

1. I am a staff attorney with Lambda Legal Defense and Education Fund, Inc., andco-counsel of record for plaintiff Karen Golinski. I am licensed to practice law in the State of

California and am admitted to practice before this Court. I make this declaration of my own

personal knowledge and, if called as a witness, could and would testify competently to the matters

stated herein.

2. Plaintiffs motion for summary judgment was originally noticed for September 16,2011, and is set to be heard on October 21, 2011. Plaintiff originally filed her motion on July 1,

2011.

3. BLAG has had plaintiffs discovery responses since September 1, 2011.4. On Friday, September 23, 2011, counsel for Intervenor Bipartisan Legal Advisory

Group (BLAG), Christopher Bartolomucci, sent an email to counsel for plaintiff and defendants

indicating BLAGs intent to seek leave to file a superseding opposition to plaintiffs motion for

summary judgment. Mr. Bartolomucci stated that BLAG would be prepared to file its brief by

October 10, 2011. A true and correct copy of Mr. Bartolomuccis email is attached hereto as

Exhibit A.

5. Rita Lin, co-counsel for plaintiff, responded on Monday, September 26, 2011,communicating frustration with BLAGs long delay in making this request. Based on a review of

the summary judgment opposition papers BLAG has filed in Windsor v. United States, No. 1:10-

cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-

01750-VLB (D. Conn.), both of which are similar to each other and rely significantly on the

deposition testimony of plaintiffs experts in Windsor, plaintiff suspects that the principal new

evidence that BLAG plans to introduce here is that deposition testimony. Those depositions were

taken in June andJuly, prior to the due date of BLAGs existing opposition brief. Discovery in

Windsorclosed on July 11, 2011.

6. Nonetheless, Ms. Lin communicated in her September 26, 2011 email responsethat plaintiff would agree to BLAGs request to file a superseding motion for summary judgment

opposition on the condition that plaintiff would have adequate time to file a superseding reply


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CASE

NO

.3:10-

CV-0257-JSW

2

brief. Ms. Lin proposed that BLAG file by October 11, 2011 since October 10, 2011 is a court

holiday. As the plaintiffs did in Windsorand Pedersen, plaintiff anticipates a need to supplement

her reply with rebuttal testimony from her experts. Because one of plaintiffs experts, who likely

will be needed for such testimony, is abroad until October 20, 2011, plaintiff had no choice but to

suggest that she file her reply by November 1, 2011. A true and correct copy of this September

26, 2011 email from Ms. Lin is attached hereto as Exhibit B.

7. The following day, on Tuesday, September 27, 2011 Mr. Bartolomucci indicatedthat BLAG was amenable to plaintiffs suggestions and that he would draft a motion accordingly.

A true and correct copy of Mr. Bartolomuccis email is attached hereto as Exhibit C.

8. Hearing nothing further by Wednesday, September 28, 2011, Ms. Lin contactedBLAGs counsel, Mr. Bartolomucci, again. A true and correct copy of Ms. Lins email is

attached hereto as Exhibit D.

9. Mr. Bartolomucci responded on Wednesday, September 28, 2011 indicating thathe was preparing a draft stipulation. A true and correct copy of Mr. Bartolomuccis email is

attached hereto as Exhibit E.

10. Ms. Lin responded the same day requesting that BLAGs filing be styled as anunopposed motion. A true and correct copy of this email is attached hereto as Exhibit F.

11. Despite Ms. Lins request, Mr. Bartolomucci sent a draft stipulation. A true andcorrect copy of Mr. Bartolomuccis email is attached hereto as Exhibit G.

12. Ms. Lin responded the same day, reiterating her request that BLAG style the filingas an unopposed motion, to avoid the misleading impression that the parties jointly are requesting

further briefing when in fact plaintiff is simply accommodating BLAGs desire to do so. A true

and correct copy of Ms. Lins email is attached hereto as Exhibit H.

13. Hearing no response by Thursday, September 29, 2011, Ms. Lin emailed Mr.Bartolomucci again to request a draft of the unopposed motion by 3 p.m. Eastern Time on

September 30, 2011. A true and correct copy of this email is attached hereto as Exhibit I.

14. Mr. Bartolomucci responded on September 30, 2011, stating that because theparties could not agree on a stipulation, BLAG has decided to simply file a motion seeking leave


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CASE

NO

.3:10-

CV-0257-JSW

3

to file a superseding opposition to plaintiffs motion for summary judgment without specifying

any dates for that brief or plaintiffs response. Mr. Bartolomucci indicated that he would say that

BLAG was prepared to file its brief before the current October 21, 2011 hearing date, despite

plaintiffs clear indication in prior correspondence that fairness requires that she be permitted to

file a superseding reply, and her experts travel schedule would not make that possible before the

October 21, 2011 hearing. A true and correct copy of Mr. Bartolomuccis September 30, 2011

email is attached hereto as Exhibit J.

15. Ms. Lin responded on September 30, 2011 to Mr. Bartolomucci indicating that themotion could not be filed as unopposed without including the briefing dates previously agreed

upon by plaintiff and BLAG. A true and correct copy of that email is attached hereto as Exhibit

K.

16. Counsel for Defendants, Christopher Hall, confirmed for plaintiff by email onSeptember 30, 2011 that defendants take no position as to these issues. A true and correct copy

of Mr. Halls email is attached hereto as Exhibit L.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 30th day of September, 2011, in Los Angeles, California.

/s/ Tara BorelliTara Borelli


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[PROPOSED]ORDER

CASE

NO

.3:10-

CV-0257-JSW








KAREN GOLINSKI,

Plaintiff,

v.



Defendants.


[PROPOSED] ORDER


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[PROPOSED]ORDER


1

After consideration of Intervenor Bipartisan Legal Advisory Groups (BLAGs)

Motion for Leave to File Superseding Opposition to Plaintiffs Motion for Summary Judgment

(Dkt. 168), the papers filed by plaintiff Karen Golinski in response thereto, and all other matters

presented to the Court, and good cause so appearing, the Court hereby ORDERS as follows:

BLAG may file a superseding opposition to plaintiffs motion for summary judgment no

later than October 11, 2011. Plaintiff may file a superseding reply in support of her motion for

summary judgment no later than November 1, 2011. The hearing on all pending motions in this

matter shall be continued to December 16, 2011 at 9:00 a.m.

IT IS SO ORDERED.

Dated: __________________, 2011 _____________________________________The Honorable Jeffrey S. WhiteUnited States District Judge


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EXHIBIT A


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"ChristopherBartolomucci"09/23/201105:25PM

To: ,"Lin,RitaF.",

cc:Subject: Golinski

DearCounsel:

Nowthatallpartieshavehadtheopportunitytoengageindiscovery,theHouseintendstomovethe

districtcourtforleavetofileasupersedingoppositiontoplaintiff'smotionforsummaryjudgment an

oppositionthatwilladdressthemeritsofplaintiff'smotionforsummaryjudgment.

TheHouseispreparedtofileitssupersedingoppositiontwoweeksfromthis comingMonday.Pleaselet

meknowifPlaintiffortheDepartmentofJusticewouldopposesuchafiling.Ifthereisnoopposition,

theHouseintendstofileamotionwiththedistrictcourtearlynextweekindicatingthattheHousewill

fileitssupersedingoppositiontwoweeksfromthiscomingMonday.

IfthereisoppositiontotheHouse'smotionforleave,wewillaskthedistrictcourtforleavetofilea

supersedingopposition

two

weeks

after

the

district

court

grants

leave,

assuming

it

does

so.

Manythanks,

ChrisBartolomucci


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EXHIBIT B


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"Lin, Rita F."09/26/201102:44PM

To: "ChristopherBartolomucci"cc: [email protected],[email protected]

Subject: RE:Golinski

Chris:

BLAG has had plaintiff's discovery responses since September 1. Also, I assume that most of thematerials with which BLAG plans to supplement are from the depositions in Windsor, where discoveryclosed in July, prior to the submission of BLAG's opposition briefs. We are having difficulty seeing whyBLAG waited until now to file a superseding opposition. That said, in order to permit a full airing of theissues, we are willing to stipulate to the filing of such an opposition, on two conditions.

First, we would need the opportunity to respond to BLAG's further summary judgment opposition with afurther reply brief, including to supplement the record with BLAG's recent discovery responses. At leastone of plaintiff's experts will be out of the country until October 20. In light of the fact that she may beneeded to provide rebuttal evidence on reply, depending on the content of BLAG's opposition brief, wewould need the deadline for the reply brief to provide sufficient time following her return to obtain thattestimony. We would therefore propose that plaintiffs have three weeks to respond to BLAG's oppositionbrief. We think that this offer should be more than fair in light of the fact that BLAG has had our opening

brief since July 1, and thus has had over three months to prepare a substantive opposition. By our count,that would mean BLAG's opposition would be due on October 11 (since October 10 is a holiday), and ourreply would be due on November 1.

Second, the hearing on both the motion to dismiss and the motion for summary judgment should berescheduled for a time after November 1, at the court's convenience.

Please let us know how you would like to proceed.

Rita

Rita Lin | Morrison & Foerster LLP425 Market Street | San Francisco, California 94105Tel. (415) 268-7466 | Fax (415) 268-7522

From: Christopher Bartolomucci [mailto:[email protected]]Sent: Friday, September 23, 2011 5:25 PMTo: [email protected]; Lin, Rita F.; [email protected]

Subject: Golinski

DearCounsel:









supersedingoppositiontwoweeksafterthedistrictcourtgrantsleave,assumingitdoesso.


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Manythanks,

ChrisBartolomucci

---------------------------------------------------------------------To ensure compliance with

requirements imposed by the IRS, Morrison & Foerster LLP informs you that, if any advice

concerning one or more U.S. Federal tax issues is contained in this communication (including

any attachments), such advice is not intended or written to be used, and cannot be used, for the

purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing

or recommending to another party any transaction or matter addressed herein.For information

about this legend, go

tohttp://www.mofo.com/Circular230/==========================================

==================================This message contains information which may

be confidential and privileged. Unless you are the addressee (or authorized to receive for the

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EXHIBIT C


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"ChristopherBartolomucci"09/27/201111:41AM

To: "Lin,RitaF."cc: ,


Thankyou,

Rita.

The

House

is

amenable

to

your

requests.

We

will

draft

amotion

for

leave.

ChrisDoestheDepartmenthaveanyviews?

From: Lin, Rita F. [mailto:[email protected]]Sent: Monday, September 26, 2011 5:44 PMTo: Christopher BartolomucciCc: [email protected]; [email protected]: RE: Golinski

Chris:


First, we would need the opportunity to respond to BLAG's further summary judgment opposition with afurther reply brief, including to supplement the record with BLAG's recent discovery responses. At leastone of plaintiff's experts will be out of the country until October 20. In light of the fact that she may beneeded to provide rebuttal evidence on reply, depending on the content of BLAG's opposition brief, wewould need the deadline for the reply brief to provide sufficient time following her return to obtain thattestimony. We would therefore propose that plaintiffs have three weeks to respond to BLAG's oppositionbrief. We think that this offer should be more than fair in light of the fact that BLAG has had our opening

brief since July 1, and thus has had over three months to prepare a substantive opposition. By our count,that would mean BLAG's opposition would be due on October 11 (since October 10 is a holiday), and ourreply would be due on November 1.



Rita

Rita Lin | Morrison & Foerster LLP425 Market Street | San Francisco, California 94105

Tel. (415) 268-7466 | Fax (415) 268-7522

From: Christopher Bartolomucci [mailto:[email protected]]Sent: Friday, September 23, 2011 5:25 PMTo: [email protected]; Lin, Rita F.; [email protected]: Golinski

DearCounsel:


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Manythanks,

ChrisBartolomucci

---------------------------------------------------------------------

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you that, if any advice concerning one or more U.S. Federal tax issues is contained in this

communication (including any attachments), such advice is not intended or written to be used,

and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or

(ii) promoting, marketing or recommending to another party any transaction or matter addressed

herein.

For information about this legend, go to

http://www.mofo.com/Circular230/

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"Lin, Rita F."09/28/201111:34AM

To: "ChristopherBartolomucci"cc: [email protected],"Hall,Christopher(CIV)"


Chris,

Just wanted to check in about this. Are you planning to file today? I will be out of the office on Friday, sowould appreciate it if you could file today or early tomorrow, so that I can look at your filing and respondpromptly. It would seem to be to the advantage of all parties to get this in front of Judge White soonerrather than later.

Best,Rita

From: Hall, Christopher (CIV) [mailto:[email protected]]Sent: Tuesday, September 27, 2011 11:58 AMTo: Christopher Bartolomucci; Lin, Rita F.Cc: [email protected]

Subject: RE: Golinski

Chris

YoucanrepresenttotheCourtthatDefendantstakenopositionastoBLAGsmotion.

Thanks,

Chris

From: Christopher Bartolomucci [mailto:[email protected]]Sent: Tuesday, September 27, 2011 2:40 PMTo: Lin, Rita F.

Cc: [email protected]; Hall, Christopher (CIV)


Thankyou,Rita. TheHouseisamenabletoyourrequests. Wewilldraftamotionforleave.


From: Lin, Rita F. [mailto:[email protected]]Sent: Monday, September 26, 2011 5:44 PMTo: Christopher BartolomucciCc: [email protected]; [email protected]: RE: Golinski

Chris:


First, we would need the opportunity to respond to BLAG's further summary judgment opposition with a


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further reply brief, including to supplement the record with BLAG's recent discovery responses. At leastone of plaintiff's experts will be out of the country until October 20. In light of the fact that she may beneeded to provide rebuttal evidence on reply, depending on the content of BLAG's opposition brief, wewould need the deadline for the reply brief to provide sufficient time following her return to obtain thattestimony. We would therefore propose that plaintiffs have three weeks to respond to BLAG's oppositionbrief. We think that this offer should be more than fair in light of the fact that BLAG has had our openingbrief since July 1, and thus has had over three months to prepare a substantive opposition. By our count,that would mean BLAG's opposition would be due on October 11 (since October 10 is a holiday), and ourreply would be due on November 1.



Rita

Rita Lin | Morrison & Foerster LLP425 Market Street | San Francisco, California 94105

Tel. (415) 268-7466 | Fax (415) 268-7522


DearCounsel:










Manythanks,

ChrisBartolomucci

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informs

you that, if any advice concerning one or more U.S. Federal tax issues is contained in this



8/3/2019 3:10-cv-00257 #169

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herein.



=====================================================================

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---------------------------------------------------------------------








tohttp://www.mofo.com/Circular230/==========================================

==================================This message contains information which may


addressee), you may not use, copy or disclose to anyone the message or any informationcontained in the message. If you have received the message in error, please advise the sender by


message.---------------------------------------------------------------------


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EXHIBIT E


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Chris:

BLAG has had plaintiff's discovery responses since September 1. Also, I assume that most of thematerials with which BLAG plans to supplement are from the depositions in Windsor, where discoveryclosed in July, prior to the submission of BLAG's opposition briefs. We are having difficulty seeing why

BLAG waited until now to file a superseding opposition. That said, in order to permit a full airing of theissues, we are willing to stipulate to the filing of such an opposition, on two conditions.

First, we would need the opportunity to respond to BLAG's further summary judgment opposition with afurther reply brief, including to supplement the record with BLAG's recent discovery responses. At leastone of plaintiff's experts will be out of the country until October 20. In light of the fact that she may beneeded to provide rebuttal evidence on reply, depending on the content of BLAG's opposition brief, wewould need the deadline for the reply brief to provide sufficient time following her return to obtain thattestimony. We would therefore propose that plaintiffs have three weeks to respond to BLAG's oppositionbrief. We think that this offer should be more than fair in light of the fact that BLAG has had our openingbrief since July 1, and thus has had over three months to prepare a substantive opposition. By our count,that would mean BLAG's opposition would be due on October 11 (since October 10 is a holiday), and ourreply would be due on November 1.



Rita


From: Christopher Bartolomucci [mailto:[email protected]]Sent: Friday, September 23, 2011 5:25 PMTo: [email protected]; Lin, Rita F.; [email protected]

Subject: Golinski

DearCounsel:










Manythanks,


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ChrisBartolomucci

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informsyou that, if any advice concerning one or more U.S. Federal tax issues is contained in this




herein.



=====================================================================

=======





---------------------------------------------------------------------

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informsyou that, if any advice concerning one or more U.S. Federal tax issues is contained in this




herein.



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---------------------------------------------------------------------


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EXHIBIT F


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"Lin, Rita F."09/28/201112:11PM

To: "ChristopherBartolomucci"cc: [email protected],"Hall,Christopher(CIV)"


Thanks. I didn't realize that. I suspect we may have trouble agreeing on joint stipulation language. Wecan discuss, but I think it may be better to just style it as an unopposed motion, to which we can respond

promptly with a statement of non-opposition.

From: Christopher Bartolomucci [mailto:[email protected]]Sent: Wednesday, September 28, 2011 12:05 PMTo: Lin, Rita F.Cc: [email protected]; Hall, Christopher (CIV)


Rita,wearedraftingthisasajointstipulation,whichIwillsendtoyouforreviewtoday.

From: Lin, Rita F. [mailto:[email protected]]Sent: Wednesday, September 28, 2011 2:33 PMTo: Christopher Bartolomucci

Cc: [email protected]; Hall, Christopher (CIV)Subject: RE: Golinski

Chris,

Just wanted to check in about this. Are you planning to file today? I will be out of the office on Friday, sowould appreciate it if you could file today or early tomorrow, so that I can look at your filing and respondpromptly. It would seem to be to the advantage of all parties to get this in front of Judge White soonerrather than later.

Best,Rita

From: Hall, Christopher (CIV) [mailto:[email protected]]Sent: Tuesday, September 27, 2011 11:58 AMTo: Christopher Bartolomucci; Lin, Rita F.Cc: [email protected]: RE: Golinski

Chris

YoucanrepresenttotheCourtthatDefendantstakenopositionastoBLAGsmotion.

Thanks,

Chris

From: Christopher Bartolomucci [mailto:[email protected]]Sent: Tuesday, September 27, 2011 2:40 PMTo: Lin, Rita F.Cc: [email protected]; Hall, Christopher (CIV)Subject: RE: Golinski

Thankyou,Rita. TheHouseisamenabletoyourrequests. Wewilldraftamotionforleave.


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From: Lin, Rita F. [mailto:[email protected]]Sent: Monday, September 26, 2011 5:44 PMTo: Christopher Bartolomucci

Cc: [email protected]; [email protected]: RE: Golinski

Chris:


First, we would need the opportunity to respond to BLAG's further summary judgment opposition with a

further reply brief, including to supplement the record with BLAG's recent discovery responses. At leastone of plaintiff's experts will be out of the country until October 20. In light of the fact that she may beneeded to provide rebuttal evidence on reply, depending on the content of BLAG's opposition brief, wewould need the deadline for the reply brief to provide sufficient time following her return to obtain thattestimony. We would therefore propose that plaintiffs have three weeks to respond to BLAG's oppositionbrief. We think that this offer should be more than fair in light of the fact that BLAG has had our openingbrief since July 1, and thus has had over three months to prepare a substantive opposition. By our count,that would mean BLAG's opposition would be due on October 11 (since October 10 is a holiday), and ourreply would be due on November 1.


Please let us know how you would like to proceed.Rita



DearCounsel:







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=======





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tohttp://www.mofo.com/Circular230/============================================================================This message contains information which may


addressee), you may not use, copy or disclose to anyone the message or any information

contained in the message. If you have received the message in error, please advise the sender by


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EXHIBIT H


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"Lin, Rita F."09/28/201103:28PM

To: "ChristopherBartolomucci",[email protected]

cc: [email protected]: RE:DraftStipulation

Chris:

Thanks for sending this over. We've discussed and would prefer to dothis as an unopposed motion. Doing this as a stipulation creates theinaccurate impression that this is a joint request to put in morebriefing. In reality, this additional round of briefing is somethingthat BLAG wants and plaintiff is willing to accommodate, provided she

has an adequate opportunity to respond and the hearing for both motionsis rescheduled appropriately.

If you convert this to a motion for leave, and send us a copy, I will behappy to review it promptly and (assuming it looks fine) give youpermission to represent that we do not oppose it.

Best,Rita

-----Original Message-----From: Christopher Bartolomucci [mailto:[email protected]]Sent: Wednesday, September 28, 2011 2:04 PMTo: Lin, Rita F.; [email protected]

Cc: [email protected]: Draft Stipulation

Rita, here is the stipulationthat we drafted. We are happy to talk about the language.

---------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison & Foerster

LLP informs you that, if any advice concerning one or more U.S. Federal taxissues is contained in this communication (including any attachments), suchadvice is not intended or written to be used, and cannot be used, for thepurpose of (i) avoiding penalties under the Internal Revenue Code or (ii)

promoting, marketing or recommending to another party any transaction ormatter addressed herein.

For information about this legend, go tohttp://www.mofo.com/Circular230/

============================================================================

This message contains information which may be confidential and privileged.Unless you are the addressee (or authorized to receive for the addressee), youmay not use, copy or disclose to anyone the message or any information

contained in the message. If you have received the message in error, pleaseadvise the sender by reply e-mail @mofo.com, and delete the message.

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"Lin, Rita F."09/29/201104:28PM

To: "ChristopherBartolomucci"cc: "Dresser,GregoryP.","Jones,AaronD."

,"Hall,Christopher(CIV)",[email protected]

Subject: RE:DraftStipulation

Chris:

We have not seen the draft motion for leave today, though we did seeyour supplemental filing. We are very concerned that if your motion forleave does not get on file tomorrow, the judge will not be able to acton the motion prior to your proposed brief due date, thus resulting in

further delay and prejudicing our client. If this continues to dragout, we will be forced to oppose your motion based on that prejudice.As it stands now, Judge White's calendar is very full between now andthe end of the year. We do not want to have to push this hearing untilnext February, when his calendar next opens up.

Could you send the draft by 3pm ET tomorrow? As I will be out of the

office (as I noted earlier in the week), please be sure to cc GregDresser and Aaron Jones, in addition to Tara Borelli. That will ensure

that we will be able to respond to your draft motion promptly.

Best,Rita


-----Original Message-----

From: Lin, Rita F. [mailto:[email protected]]Sent: Wednesday, September 28, 2011 6:28 PMTo: Christopher Bartolomucci; [email protected]: Hall, Christopher (CIV)Subject: RE: Draft Stipulation

Chris:

Thanks for sending this over. We've discussed and would prefer to dothis as an unopposed motion. Doing this as a stipulation creates theinaccurate impression that this is a joint request to put in morebriefing. In reality, this additional round of briefing is somethingthat BLAG wants and plaintiff is willing to accommodate, provided shehas an adequate opportunity to respond and the hearing for both motions

is rescheduled appropriately.

If you convert this to a motion for leave, and send us a copy, I will behappy to review it promptly and (assuming it looks fine) give you

permission to represent that we do not oppose it.

Best,

Rita

-----Original Message-----From: Christopher Bartolomucci [mailto:[email protected]]Sent: Wednesday, September 28, 2011 2:04 PMTo: Lin, Rita F.; [email protected]

Cc: [email protected]


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Subject: Draft Stipulation

Rita, here is the stipulation

that we drafted. We are happy to talk about the language.

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison &Foerster LLP informs you that, if any advice concerning one or more U.S.Federal tax issues is contained in this communication (including any

attachments), such advice is not intended or written to be used, andcannot be used, for the purpose of (i) avoiding penalties under theInternal Revenue Code or (ii) promoting, marketing or recommending toanother party any transaction or matter addressed herein.


============================================================================

This message contains information which may be confidential andprivileged. Unless you are the addressee (or authorized to receive for

the addressee), you may not use, copy or disclose to anyone the messageor any information contained in the message. If you have received themessage in error, please advise the sender by reply e-mail @mofo.com,and delete the message.

---------------------------------------------------------------------

---------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison & FoersterLLP informs you that, if any advice concerning one or more U.S. Federal taxissues is contained in this communication (including any attachments), suchadvice is not intended or written to be used, and cannot be used, for the

purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)promoting, marketing or recommending to another party any transaction ormatter addressed herein.


============================================================================

This message contains information which may be confidential and privileged.Unless you are the addressee (or authorized to receive for the addressee), youmay not use, copy or disclose to anyone the message or any informationcontained in the message. If you have received the message in error, please

advise the sender by reply e-mail @mofo.com, and delete the message.

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EXHIBIT J


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"ChristopherBartolomucci"09/30/201110:44AM

To: "Lin,RitaF."cc: "Dresser,GregoryP.","Jones,AaronD."

,"Hall,Christopher(CIV)",


Rita -- Since we can't do this by joint stipulation, the House hasdecided to file a motion that simply seeks leave to file a substantiveopposition to Plaintiff's motion for summary judgment without specifying

a due date for the opposition. The proposed order will let the courtdecide when that opposition would be due. The House will say that it isprepared to file its opposition in time for the court to proceed withthe October 21 hearing, but the House will not affirmatively ask thecourt either to move or keep the hearing date. If the House canrepresent that Plaintiff does not oppose this motion, please let me

know.

Chris H. -- I assume that DOJ takes no position, but please let me knowif I am wrong about that.

Many thanks,

Chris B.

-----Original Message-----From: Lin, Rita F. [mailto:[email protected]]Sent: Thursday, September 29, 2011 7:29 PMTo: Christopher Bartolomucci

Cc: Dresser, Gregory P.; Jones, Aaron D.; Hall, Christopher (CIV);[email protected]: RE: Draft Stipulation

Chris:

We have not seen the draft motion for leave today, though we did seeyour supplemental filing. We are very concerned that if your motion forleave does not get on file tomorrow, the judge will not be able to acton the motion prior to your proposed brief due date, thus resulting infurther delay and prejudicing our client. If this continues to dragout, we will be forced to oppose your motion based on that prejudice.As it stands now, Judge White's calendar is very full between now andthe end of the year. We do not want to have to push this hearing until

next February, when his calendar next opens up.

Could you send the draft by 3pm ET tomorrow? As I will be out of theoffice (as I noted earlier in the week), please be sure to cc GregDresser and Aaron Jones, in addition to Tara Borelli. That will ensurethat we will be able to respond to your draft motion promptly.

Best,RitaRita Lin | Morrison & Foerster LLP425 Market Street | San Francisco, California 94105 Tel. (415) 268-7466| Fax (415) 268-7522



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From: Lin, Rita F. [mailto:[email protected]]Sent: Wednesday, September 28, 2011 6:28 PMTo: Christopher Bartolomucci; [email protected]

Cc: Hall, Christopher (CIV)Subject: RE: Draft Stipulation

Chris:

Thanks for sending this over. We've discussed and would prefer to dothis as an unopposed motion. Doing this as a stipulation creates the

inaccurate impression that this is a joint request to put in morebriefing. In reality, this additional round of briefing is somethingthat BLAG wants and plaintiff is willing to accommodate, provided shehas an adequate opportunity to respond and the hearing for both motionsis rescheduled appropriately.

If you convert this to a motion for leave, and send us a copy, I will be

happy to review it promptly and (assuming it looks fine) give youpermission to represent that we do not oppose it.

Best,

Rita

-----Original Message-----From: Christopher Bartolomucci [mailto:[email protected]]Sent: Wednesday, September 28, 2011 2:04 PMTo: Lin, Rita F.; [email protected]: [email protected]: Draft Stipulation


---------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison &Foerster LLP informs you that, if any advice concerning one or more U.S.

Federal tax issues is contained in this communication (including anyattachments), such advice is not intended or written to be used, andcannot be used, for the purpose of (i) avoiding penalties under theInternal Revenue Code or (ii) promoting, marketing or recommending toanother party any transaction or matter addressed herein.



============================================================================

This message contains information which may be confidential and

privileged. Unless you are the addressee (or authorized to receive forthe addressee), you may not use, copy or disclose to anyone the messageor any information contained in the message. If you have received themessage in error, please advise the sender by reply e-mail @mofo.com,and delete the message.

---------------------------------------------------------------------


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---------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison &Foerster LLP informs you that, if any advice concerning one or more U.S.

Federal tax issues is contained in this communication (including anyattachments), such advice is not intended or written to be used, andcannot be used, for the purpose of (i) avoiding penalties under theInternal Revenue Code or (ii) promoting, marketing or recommending to

another party any transaction or matter addressed herein.



============================================================================

This message contains information which may be confidential andprivileged. Unless you are the addressee (or authorized to receive for

the addressee), you may not use, copy or disclose to anyone the messageor any information contained in the message. If you have received themessage in error, please advise the sender by reply e-mail @mofo.com,and delete the message.

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EXHIBIT K


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"Lin, Rita F."09/30/201101:55PM

To: [email protected]: "Dresser,GregoryP.","Jones,AaronD."

,[email protected],[email protected]

Subject: Re:DraftStipulation

Chris:

Without a date for the opposition or provision for a reply , we cannot agree to have your request filed as an

unopposed motion.

As I noted in my email, we need to resolve this quickly, as Judge White's calendar is filling quickly. Please confirm

that you will be filing your motion today. If we do not see a filing by 7pm ET, we will assume that you do not plan

to file, and will file our own affirmative request to the court later today.

Chris H -- I too understand from your emails that DOJ takes no position, but let us know if we are wrong.

Best,

Rita

----- Original Message -----From: Christopher Bartolomucci

To: Lin, Rita F.

Cc: Dresser, Gregory P.; Jones, Aaron D.; Hall, Christopher (CIV) ;

[email protected]

Sent: Fri Sep 30 10:44:05 2011

Subject: RE: Draft Stipulation

Rita -- Since we can't do this by joint stipulation, the House has

decided to file a motion that simply seeks leave to file a substantive

opposition to Plaintiff's motion for summary judgment without specifying

a due date for the opposition. The proposed order will let the court

decide when that opposition would be due. The House will say that it is

prepared to file its opposition in time for the court to proceed withthe October 21 hearing, but the House will not affirmatively ask the

court either to move or keep the hearing date. If the House can

represent that Plaintiff does not oppose this motion, please let me

know.

Chris H. -- I assume that DOJ takes no position, but please let me know

if I am wrong about that.

Many thanks,

Chris B.


From: Lin, Rita F. [mailto:[email protected]]

Sent: Thursday, September 29, 2011 7:29 PM

To: Christopher Bartolomucci

Cc: Dresser, Gregory P.; Jones, Aaron D.; Hall, Christopher (CIV);

[email protected]



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Chris:

We have not seen the draft motion for leave today, though we did see

your supplemental filing. We are very concerned that if your motion for

leave does not get on file tomorrow, the judge will not be able to act

on the motion prior to your proposed brief due date , thus resulting in

further delay and prejudicing our client. If this continues to dragout, we will be forced to oppose your motion based on that prejudice.

As it stands now, Judge White's calendar is very full between now and

the end of the year. We do not want to have to push this hearing until

next February, when his calendar next opens up.

Could you send the draft by 3pm ET tomorrow? As I will be out of the

office (as I noted earlier in the week), please be sure to cc Greg

Dresser and Aaron Jones, in addition to Tara Borelli. That will ensure

that we will be able to respond to your draft motion promptly.

Best,

Rita

Rita Lin | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105 Tel. (415) 268-7466

| Fax (415) 268-7522


From: Lin, Rita F. [mailto:[email protected]]

Sent: Wednesday, September 28, 2011 6:28 PM

To: Christopher Bartolomucci; [email protected]

Cc: Hall, Christopher (CIV)


Chris:

Thanks for sending this over. We've discussed and would prefer to do

this as an unopposed motion. Doing this as a stipulation creates the

inaccurate impression that this is a joint request to put in more

briefing. In reality, this additional round of briefing is something

that BLAG wants and plaintiff is willing to accommodate, provided she

has an adequate opportunity to respond and the hearing for both motions

is rescheduled appropriately.

If you convert this to a motion for leave, and send us a copy, I will be

happy to review it promptly and (assuming it looks fine) give you

permission to represent that we do not oppose it.

Best,

Rita


From: Christopher Bartolomucci [mailto:[email protected]]

Sent: Wednesday, September 28, 2011 2:04 PM

To: Lin, Rita F.; [email protected]

Cc: [email protected]

Subject: Draft Stipulation


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Rita, here is the stipulation

that we drafted. We are happy to talk about the language.

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison &Foerster LLP informs you that, if any advice concerning one or more U.S.

Federal tax issues is contained in this communication (including any

attachments), such advice is not intended or written to be used, and

cannot be used, for the purpose of (i) avoiding penalties under the

Internal Revenue Code or (ii) promoting, marketing or recommending to



http://www mofo.com/Circular230/

========================================================================

====


privileged. Unless you are the addressee (or authorized to receive for

the addressee), you may not use, copy or disclose to anyone the message

or any information contained in the message. If you have received the

message in error, please advise the sender by reply e-mail @mofo.com,

and delete the message.

---------------------------------------------------------------------

---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison &

Foerster LLP informs you that, if any advice concerning one or more U.S.

Federal tax issues is contained in this communication (including any

attachments), such advice is not intended or written to be used, and

cannot be used, for the purpose of (i) avoiding penalties under the

Internal Revenue Code or (ii) promoting, marketing or recommending to



http://www mofo.com/Circular230/

========================================================================

====


privileged. Unless you are the addressee (or authorized to receive for

the addressee), you may not use, copy or disclose to anyone the message

or any information contained in the message. If you have received the

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and delete the message.

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purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketingor recommending to another party any transaction or matter addressed herein. For information

about this legend, go to http://www.mofo.com/Circular230/

=====================================================================

======= This message contains information which may be confidential and privileged. Unless

you are the addressee (or authorized to receive for the addressee), you may not use, copy or

disclose to anyone the message or any information contained in the message. If you have

received the message in error, please advise the sender by reply e-mail @mofo.com, and delete

the message. ---------------------------------------------------------------------


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EXHIBIT L


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"Hall, Christopher (CIV)"09/30/201101:55PM

To: "ChristopherBartolomucci","Lin,RitaF."

cc: "Dresser,GregoryP.","Jones,AaronD.",


Chris --

Consistent with your assumption, the Department takes no position as tothe motion and requested relief described in your e-mail.

Regards,

Chris

-----Original Message-----From: Christopher Bartolomucci [mailto:[email protected]]Sent: Friday, September 30, 2011 1:44 PMTo: Lin, Rita F.Cc: Dresser, Gregory P.; Jones, Aaron D.; Hall, Christopher (CIV);

[email protected]: RE: Draft Stipulation

Rita -- Since we can't do this by joint stipulation, the House hasdecided to file a motion that simply seeks leave to file a substantiveopposition to Plaintiff's motion for summary judgment without specifyinga due date for the opposition. The proposed order will let the court

decide when that opposition would be due. The House will say that it isprepared to file its opposition in time for the court to proceed withthe October 21 hearing, but the House will not affirmatively ask thecourt either to move or keep the hearing date. If the House canrepresent that Plaintiff does not oppose this motion, please let meknow.

Chris H. -- I assume that DOJ takes no position, but please let me knowif I am wrong about that.

Many thanks,

Chris B.

-----Original Message-----From: Lin, Rita F. [mailto:[email protected]]Sent: Thursday, September 29, 2011 7:29 PMTo: Christopher BartolomucciCc: Dresser, Gregory P.; Jones, Aaron D.; Hall, Christopher (CIV);

[email protected]: RE: Draft Stipulation

Chris:

We have not seen the draft motion for leave today, though we did seeyour supplemental filing. We are very concerned that if your motion for

leave does not get on file tomorrow, the judge will not be able to acton the motion prior to your proposed brief due date, thus resulting infurther delay and prejudicing our client. If this continues to dragout, we will be forced to oppose your motion based on that prejudice.As it stands now, Judge White's calendar is very full between now andthe end of the year. We do not want to have to push this hearing untilnext February, when his calendar next opens up.


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Could you send the draft by 3pm ET tomorrow? As I will be out of theoffice (as I noted earlier in the week), please be sure to cc Greg

Dresser and Aaron Jones, in addition to Tara Borelli. That will ensurethat we will be able to respond to your draft motion promptly.

Best,

RitaRita Lin | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105 Tel. (415) 268-7466| Fax (415) 268-7522

-----Original Message-----From: Lin, Rita F. [mailto:[email protected]]Sent: Wednesday, September 28, 2011 6:28 PM

To: Christopher Bartolomucci; [email protected]: Hall, Christopher (CIV)Subject: RE: Draft Stipulation

Chris:

Thanks for sending this over. We've discussed and would prefer to dothis as an unopposed motion. Doing this as a stipulation creates theinaccurate impression that this is a joint request to put in morebriefing. In reality, this additional round of briefing is somethingthat BLAG wants and plaintiff is willing to accommodate, provided shehas an adequate opportunity to respond and the hearing for both motionsis rescheduled appropriately.

If you convert this to a motion for leave, and send us a copy, I will behappy to review it promptly and (assuming it looks fine) give youpermission to represent that we do not oppose it.

Best,Rita

-----Original Message-----From: Christopher Bartolomucci [mailto:[email protected]]Sent: Wednesday, September 28, 2011 2:04 PMTo: Lin, Rita F.; [email protected]: [email protected]: Draft Stipulation


---------------------------------------------------------------------

To ensure compliance with requirements imposed by the IRS, Morrison &Foerster LLP informs you that, if any advice concerning one or more U.S.Federal tax issues is contained in this communication (including anyattachments), such advice is not intended or written to be used, andcannot be used, for the purpose of (i) avoiding penalties under theInternal Revenue Code or (ii) promoting, marketing or recommending toanother party any transaction or matter addressed herein.



8/3/2019 3:10-cv-00257 #169

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============================================================================

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or any information contained in the message. If you have received themessage in error, please advise the sender by reply e-mail @mofo.com,and delete the message.

---------------------------------------------------------------------

---------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison &

Foerster LLP informs you that, if any advice concerning one or more U.S.Federal tax issues is contained in this communication (including anyattachments), such advice is not intended or written to be used, andcannot be used, for the purpose of (i) avoiding penalties under the

Internal Revenue Code or (ii) promoting, marketing or recommending toanother party any transaction or matter addressed herein.


============================================================================

This message contains information which may be confidential andprivileged. Unless you are the addressee (or authorized to receive forthe addressee), you may not use, copy or disclose to anyone the messageor any information contained in the message. If you have received themessage in error, please advise the sender by reply e-mail @mofo.com,and delete the message.

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