Discovery overreach in Prop 8 battle?

According to LawDork, proponents of California’s Proposition 8 are planning to engage in some seriously broad discovery [PDF, see pages numbered 11-12] in their defense of the law against constitutional challenge:

We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means. We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records). We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

Translated, this seems to mean they will make public records officials cough up the information needed to cross-check California birth against domestic-partnership records to “catch” people whose names appear in both data sets and thus appear likely to be gay parents. In case that doesn’t do the trick, they want to force assisted-reproduction clinics to disclose information about their clientele. Wow.

P.S. In answer to several questions, no, Ted Olson and I are not related.


  • Thanks for the link. Also, there’s more there, in terms of potentially overreaching discovery descriptions — and I’ve posted the brief at the top of the post.

  • As awful as that is, it’s nice to see it being deployed on the conservative side for once. If both sides used all available legal nastiness, I think what was “available” would shrink, which would be good.

    That is, I view this similarly to how people occasionally talk about how to get rid of a bad law: thorough and even-handed enforcement. As long as one side mostly plays nice, the laws won’t be changed.