Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress
| Decision Date | 23 August 2019 |
| Docket Number | Case No. 16-cv-00236-WHO |
| Citation | 402 F.Supp.3d 615 |
| 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 |
Amy Lynne Bomse, Rogers Joseph O'Donnell, Sharon D. Mayo, Stephanie Ilana Fine, Tommy Huynh, Jee Young You, Arnold & Porter Kaye Scholer LLP, Julie Allison Kent, Steven Lee Mayer, Arnold and Porter LLP, San Francisco, CA, Beth Harrison Parker, Planned Parenthood Northern California, Concord, CA, Helene Krasnoff, Pro Hac Vice, Planned Parenthood Federation of America, Meghan C. Martin, Arnold and Porter LLP, Washington, DC, Joseph G. Phillips, Pro Hac Vice, Arnold Porter, Denver, CO, Rhonda Renee Trotter, Oscar Daniel Ramallo, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, Diana K. Sterk, Pro Hac Vice, Arnold and Porter, Maithreyi Ratakonda, Pro Hac Vice, New York, NY, for Plaintiffs.
Charles Salvatore LiMandri, Law Offices of Charles S. LiMandri, Jeffrey Michael Trissell, Teresa Lynn Kubu Mendoza, Paul Michael Jonna, Law Offices of Charles S. LiMandri, APC, Rancho Santa Fe, CA, Denise Mayo Harle, Alliance Defending Freedom, Lawrenceville, GA, Gregory Richard Michael, Harmeet K. Dhillon, Dhillon Law Group Inc., San Francisco, CA, for Defendants.
ORDER ON PENDING MOTIONS
Re: Dkt. Nos. 595, 598, 600, 601, 602, 603, 605, 606, 609, 611, 641, 643
At the core of this case are defendants' undisputed actions in infiltrating conferences of plaintiff Planned Parenthood Federation of America (PPFA) and other organizations as well as two PPFA-affiliated facilities (who are also plaintiffs) and the intentional targeting of particular staff members employed by PPFA or the PPFA-affiliate plaintiffs in order to surreptitiously record conversations with the conference attendees and plaintiffs' targeted staff. Defendants contend that all of their efforts were part of the Human Capital Project (HCP or Project) "to investigate, document, and report on the procurement, transfer, and sale of aborted fetal tissue." Declaration of David Daleiden ISO MSJ (Daleiden MSJ Decl.) [Dkt. No. 609-1] ¶ 3; Declaration of David Daleiden ISO Oppo. [Dkt. No. 659-2] ¶ 3. In July 2015, the public phase of the Project began with defendants' publication of a series of curated videos, including recordings of plaintiff' staff from the conferences, from the facilities, and from lunch meetings. Daleiden MSJ Decl. ¶ 57.1
On July 17, 2019, the parties argued seven motions for summary judgment, one special motion to strike the complaint, a Daubert motion, and a motion to strike an expert. After reviewing the record laid out in the motions, certain issues are beyond dispute. Defendants set out to damage Planned Parenthood with a scheme that involved creating a phony corporation and false identities, infiltrating conferences and facilities, ignoring confidentiality agreements, and trading on relationships established under false pretenses for the purpose of secretly videotaping individuals without their consent in the hopes of getting them to make damaging statements. There are distinctions between which defendants are responsible for what acts, but there is no doubt that several defendants committed fraud, breached contracts, and trespassed at the conferences and in the Planned Parenthood facilities. However, given scope of the claims and the manner in which the issues were framed on this motion, even partial summary judgment is not feasible on most of those claims.
A harder question is to what extent Planned Parenthood was damaged by defendants' conduct. While it is beyond dispute that Planned Parenthood expended hundreds of thousands of dollars in order to protect their staff and enhance security after the publication of some of the videos that defendants took, much of that expense was incurred in anticipation of and in response to a marked increase of third-party threats and security incidents. Planned Parenthood cannot recover for reputational damages or "publication" damages under the First Amendment, but there is no bright line in the precedent establishing when a category of damages should be analyzed by proximate cause or the First Amendment.
This Order draws the line for compensable damages between those caused by defendants' direct conduct and those caused by third parties. The potentially recoverable damages are for personal security costs for individuals targeted by the defendants and for measures to investigate the intrusions and upgrade the security measures meant to vet and restrict future access to the conferences and facilities. Excluded are more general expenses to upgrade physical security at Planned Parenthood facilities as well as the time and expense plaintiffs incurred in responding to the threats and acts of third parties following release of the videos. This Order also addresses the myriad of other issues generated in the ten motions before me.
I. Creation of CMP and BioMax, and Use of False Identities to Allow Defendants to Infiltrate the Conferences and Facilities...635
II. Plaintiffs' Conferences and Facilities...637
III. Publication of the Videos, this Lawsuit and Claims...639
I. Motions for Summary Judgment...641
I. CREATION OF CMP AND BIOMAX, AND USE OF FALSE IDENTITIES TO ALLOW DEFENDANTS TO INFILTRATE THE CONFERENCES AND FACILITIES
Defendant David Daleiden established the Center for Medical Progress (CMP) in 2013 for the "purpose of monitoring and reporting on medical ethics and advances, with a special focus on contemporary bioethical issues that impact human dignity, such as induced abortion and aborted fetal tissue and organ harvesting." Daleiden MSJ Decl. ¶ 2.2 He invited defendants Troy Newman and Albin Rhomberg to be directors. Declaration of David Daleiden April 16, 2019 (Daleiden Depo. I, Declaration of Diana Sterk ISO MSJ (Sterk Decl.), Ex. 8) at 109-110. In March 2013, Newman, Daleiden, and Albin Rhomberg formed CMP as a California not-for-profit corporation. Daleiden Depo. I at 180:25-182:10. Daleiden was CMP's CEO and Director. Id. Application of CMP to California Secretary of State & Articles of Incorporation (CMP AoI), Ex. 15 to Sterk Decl. [Dkt. No. 607]; Declaration of David ISO Anti-SLAPP Motion (Daleiden Anti-SLAPP Decl. [Dkt. No. 600-2] ) ¶ 2. Newman was the Secretary of CMP.3 CMP AoI, NAF0001805. Rhomberg was the CFO. CMP AoI NAF0001805; Deposition of Albin Rhomberg March 14, 2019 (Rhomberg Depo. I, Sterk Decl., Ex. 14) at 115:9-20. Newman, Daleiden, and Rhomberg each served on CMP's board. CMP AoI, NAF0001804, 1805; Rhomberg Depo. I at 115:9-20.4
Through CMP, Daleiden inaugurated HCP in 2013 in order to "investigate, document, and report on the procurement, transfer, and sale of aborted fetal tissue." Daleiden MSJ Decl. ¶ 3; Daleiden Anti-SLAPP Decl. [Dkt. No. 600-1] ¶ 3. HCP intended to use "undercover journalism tools" such as hidden cameras and misrepresentations about identities to secure entrance to Planned Parenthood conferences and facilities. Daleiden MSJ Decl. ¶¶ 23, 39.
HCP project proposals, shared with Newman and Rhomberg in early 2013, explained the Project's plan to infiltrate Planned Parenthood and National Abortion Federation (NAF) conferences and facilities to implement "creative scenario-based ‘gotcha’ stings" and "undercover stings" to catch "fetal traffickers, especially Planned Parenthood clinics" violating laws regulating the procurement and transfer of fetal tissue, create "outrage" at Planned Parenthood (and researchers), deliver a "major public relations blow to Planned Parenthood," promote "defunding efforts for Planned Parenthood," and initiate criminal prosecution and investigations of clinics, wholesalers, and doctors. 2013 Project Proposal (Proposal, Sterk Decl. [Dkt. No. 608-1], Ex. 12), CM05623, 05635; see also March 2013 Project Proposal (Sterk Decl., Ex. 80). The "foundational goal" of the Project was to target and "hurt" Planned Parenthood. Planned Parenthood affiliates were specific targets, as were "high-level PP national officials." Id. CM0...
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