Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress
| Decision Date | 31 May 2018 |
| Docket Number | Case No. 16-cv-00236-WHO (DMR) |
| Parties | PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs, v. CENTER FOR MEDICAL PROGRESS, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
The parties filed an omnibus joint submission consisting of five individual discovery motions addressing 17 separate disputes which they labeled P1 through P10 and D1 through D7. [Docket Nos. 166 (Exs. A-E), 191.] After the court scheduled a hearing, which was continued twice at the parties' request, the parties reached agreement on some disputes and narrowed others, and submitted further briefing on some of them. [Docket Nos. 218, 222, 224, 230, 233.]
The court held a hearing on February 8, 2018. [Docket No. 229 (Minute Order).] Following the hearing, the court twice ordered the parties to submit additional briefing regarding Defendants' privilege assertions and objections. [Docket No. 237, 256.] The parties timely filed the additional briefing. [Docket No. 242, 259.] The court now enters this order on the following disputes which are ripe for adjudication: P1, P2, P3, P4, P5, P6, P7, P8, P9, and P10.
Plaintiffs are Planned Parenthood Federation of America, Inc. ("PPFA"), seven individual California Planned Parenthood affiliates, Planned Parenthood of the Rocky Mountains, Planned Parenthood Gulf Coast, and Planned Parenthood Center for Choice. Defendants are Center for Medical Progress ("CMP"), which holds itself out as a charitable trust; BioMax Procurement Services, LLC ("BioMax"); David Daleiden, aka Robert Sarkis, who is BioMax's Procurement Manager and Vice President of Operations as well as CMP's CEO; CMP Secretary Troy Newman; CMP Chief Financial Officer Albin Rhomberg; BioMax registered agent Phillip S. Cronin; BioMax CEO Sandra Susan Merritt, aka Susan Tennebaum; and BioMax Procurement Technician Gerardo Adrian Lopez. [Docket No. 59 (First Amended Complaint, "FAC").]
Plaintiffs allege in the first amended complaint ("FAC") that Defendants created a "complex criminal enterprise . . . involv[ing] fake companies, fake identifications, and large-scale illegal taping" of reproductive health care conferences and private meetings in order to advance their goal of "interfering with women's access to legal abortion." FAC ¶ 1. According to Plaintiffs, Defendants' conspiracy focused on Planned Parenthood affiliates' facilitation of fetal tissue donation. Defendants set up a fake company called BioMax that falsely held itself out as a legitimate fetal tissue procurement company. Id. at ¶ 5. The individual defendants pretended to be officers and employees of BioMax using pseudonyms and fake names. They used those fake identities to gain access to private conferences held by Planned Parenthood and the National Abortion Federation. Once admitted, they wore hidden video cameras and secretly taped hundreds of hours of conversations with Plaintiffs' staff. Id. Plaintiffs allege that Defendants then "leveraged the 'professional' relationships they made at the conferences" to obtain access to individual Planned Parenthood doctors and affiliates in private meetings, some of them held inside secure Planned Parenthood offices and clinical spaces in Colorado and Texas. Id. at ¶ 6.
Plaintiffs assert that Defendants then went public with a "vicious online video smear campaign," called the "Human Capital Project." Id. at ¶¶ 7, 124. Starting in July 2015, Defendants allegedly released a series of YouTube videos purporting to show that Planned Parenthood violated federal law related to tissue donation. Id. at ¶¶ 7, 128. The videos were heavily manipulated, with critical content deliberately deleted and disconnected portions sewn together to create a misleading impression. Id. at ¶¶ 7, 129, 133, 137, 139, 141. Plaintiffs allege that after Defendants released the videos, there was a "dramatic increase in the threats, harassment, and criminal activities targeting abortion providers and their supporters," as well as Planned Parenthood health centers. Id. at ¶ 8.
Plaintiffs assert fifteen claims for relief, including claims against all Defendants for violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962(c), and conspiracy to violate RICO, 18 U.S.C. § 1962(d); and violation of the federal Wiretap Act, 18 U.S.C. § 2511, against Daleiden, Merritt, Lopez, CMP, BioMax, and Unknown Co-Conspirators. Plaintiffs bring the remaining thirteen claims under state law. These include claims for breach of contract, trespass, and violation of state wiretapping laws.
This case is related to National Abortion Federation v. Center for Medical Progress, et al., 15-cv-3522 WHO, which was filed on July 31, 2015. [Docket No. 10 ("NAF").] In that action, Plaintiff NAF, the professional association of abortion providers, sues CMP, BioMax, Daleiden, and Newman, alleging claims based on the same conduct at issue in this case—namely, that CMP, Daleiden, and Newman set up a fake company known as BioMax that held itself out as a legitimate fetal tissue procurement organization. NAF alleges that the individuals used fake names and identities to gain access to NAF's meetings and then released heavily edited, misleading videos resulting in anti-abortion harassment—the so-called "Human Capital Project."
Plaintiffs filed the FAC on March 24, 2016. Defendants moved to dismiss the FAC and separately moved to strike the state law claims pursuant to California's anti-SLAPP statute. [Docket Nos. 78, 79, 81, 87.] The Honorable William H. Orrick denied the motions to dismiss and strike on September 30, 2016.1 [Docket No. 124.] Defendants appealed the denial of the anti-SLAPP motions, which automatically stayed all proceedings regarding the state law claims, including discovery. [Docket Nos. 129 (Notice of Appeal), 146.] Defendants then moved to stay the remaining federal claims pending resolution of their appeal. [Docket No. 138 (Mot. to Stay).] Judge Orrick denied the motion on December 22, 2016, and ordered that written discovery anddocument production on the RICO and Wiretap Act claims "shall not be stayed and shall continue." [Docket No. 146.]
In May 2016, Judge Orrick denied CMP, BioMax, and Daleiden's motion to quash a subpoena issued by Plaintiffs to NAF. That subpoena sought the production of all documents, information, and recordings produced by the defendants in the NAF case, as well as copies of all transcripts and exhibits for depositions taken of any of the NAF defendants. [Docket No. 90 (Order on Mot. to Quash).] In denying the motion to quash, Judge Orrick ordered that Plaintiffs "are bound by the provisions of the NAF v. CMP Protective Order with respect to any and all uses of the materials produced pursuant to the subpoena." Id. On August 31, 2016, Judge Orrick entered a stipulated protective order in this case. [Docket No. 117.]
On June 14, 2017, the parties filed the present submission to which they attached five joint letters addressing their discovery disputes. Following resolution of Defendants' motion to disqualify Judge Orrick, he referred discovery to the undersigned on October 18, 2017. [Docket No. 187.] Although the court set a hearing for December 21, 2017, the parties twice requested that it be postponed. [Docket Nos. 189, 208, 213.] During that time, the parties continued to meet and confer and provided updates regarding the status of the disputes discussed in the five individual joint letters. Ultimately, the parties sought adjudication of issues in three of the letters, which were labeled Exhibits A, B, and C. [See Docket Nos. 218, 224.]
On February 8, 2018, the court held a hearing regarding the following disputes: P1, P2, P3, P4, P5, P6, P7, P8, and D2.2 As to D2, the court ordered the parties to meet and confer further and to submit a joint letter if disputes remained.3 [Docket No. 229 (Minute Order).] In compliancewith four subsequent court orders (Docket Nos. 219, 225, 237, 256), the parties filed supplemental briefing and/or evidence regarding disputes P1 through P6, P8, and P9. [Docket Nos. 222, 230, 233, 242, 259.] The disputes determined through this order are P1, P2, P3, P4, P5, P6, P7, P8, P9, and P10.
On May 16, 2018, after the parties completed their briefing on the present motions, the Ninth Circuit affirmed Judge Orrick's decision denying Defendants' anti-SLAPP motion. Planned Parenthood Fed. of Am., Inc. v. Ctr. for Medical Progress, ---F.3d---, 2018 WL 2223990 (9th Cir. May 16, 2018) (); Planned Parenthood Fed. of Am., Inc. v. Ctr. for Medical Progress, ---Fed. Appx.---, 2018 WL 2229329 (9th Cir. May 16, 2018) ().
Fed. R. Civ. P. 26(b)(1). "Information within this scope of discovery need not be admissible in evidence to be discoverable." Id. "Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries." Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006). The party seeking discovery has the initial burden of establishing that its request satisfies Rule 26(b)(1)'s relevancy requirement, La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D....
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