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Federal Court Rules Center for Medical Progress and BioMax Can’t Plead the Fifth

Imani Gandy

A federal judge today handed a decisive loss to the Center for Medical Progress and BioMax, the two organizations embroiled in a lawsuit with the National Abortion Federation stemming from their smear campaign against Planned Parenthood.

See more of our coverage on the misleading Center for Medical Progress videos here.

A federal judge today handed a decisive loss to the Center for Medical Progress (CMP) and BioMax, the two organizations embroiled in a lawsuit with the National Abortion Federation (NAF) stemming from their smear campaign against Planned Parenthood, along with David Daleiden, the head of CMP.

Judge William Orrick of the U.S. District Court of Northern California in San Francisco ruled that Center for Medical Progress and BioMax as corporate defendants cannot plead the Fifth Amendment in order to avoid responding to NAF’s discovery requests.

NAF filed a lawsuit in late July alleging civil conspiracy, racketeering, fraud, and breach of contract, among other civil and criminal allegations, stemming from the release of video footage deceptively edited to suggest that NAF members, including Planned Parenthood, are engaged in illegal trafficking of fetal baby parts.

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NAF also sought a temporary restraining order blocking any further release of the attack videos.

Orrick issued the temporary restraining order, and ordered expedited discovery so that the National Abortion Federation could gather evidence to support its effort to obtain a preliminary injunction blocking CMP and Daleiden from releasing additional footage or other materials that NAF alleges the anti-choice front group fraudulently acquired. CMP and Daleiden used false identification cards to infiltrate NAF’s annual meetings in 2014 and 2015, according to NAF.

All defendants in the case, including the corporate defendants, informed the court last month that they planned to plead the Fifth Amendment in response to all of NAF’s discovery requests in order to avoid making any self-incriminatory statements.

No court in the country has ever permitted a corporation to plead the Fifth Amendment.

In an order issued on September 11, Orrick noted that “[t]here is no dispute that individual defendants, such as Daleiden and Newman, may invoke the Fifth Amendment, which may be asserted in civil proceedings in response to any official questions when the answers may incriminate the party who answers.”

However, during a hearing this morning, Orrick declined to extend the Fifth Amendment privilege to the corporate defendants, CMP and BioMax.

CMP has argued that none of the defendants should be required to provide responses to NAF’s discovery requests. It maintains that Orrick’s temporary restraining order is an unconstitutional prior restraint, or pre-publication censorship, on their First Amendment right to freedom of speech. It has also consistently claimed that NAF is unlikely to succeed in obtaining a preliminary injunction since prior restraints on speech are presumptively unconstitutional.

NAF claims that corporate defendants do not have testimonial privilege, and that in any event, the defendants waived their First Amendment rights when they knowingly and voluntarily signed confidentiality agreements prohibiting them from making public any video or audio recordings and materials of NAF educational meetings.

NAF says that it seeks to protect its members, many of whom are providers, from harassment from anti-choice extremists as a result of CMP releasing their names and identities to the public.

The battle as to whether or not the NAF is entitled to discovery has dragged on for weeks.

“It’s telling that the defendants have been very vocal in the media saying that they have nothing to hide, yet in Federal court they want to plead the Fifth,” NAF President and CEO Vicki Saporta said in a statement. “We are pleased with the results of today’s hearing, and are eager to move forward with the discovery process.”

Yesterday, the Ninth Circuit handed CMP a brief victory in the discovery battle when it issued an order blocking all discovery until the court has a chance to consider an emergency motion that CMP filed. The emergency motion asks the Ninth Circuit to forbid Orrick from allowing NAF to conduct discovery in support of its effort to obtain a preliminary injunction.

The emergency motion notes that CMP has filed several motions, including a motion to dismiss and an anti-SLAPP motion, which it claims obviates the need for CMP to provide any discovery whatsoever. (An anti-SLAPP motion is a special court document that a party to a lawsuit can file with a court when a complaint against that party arises from activity exercising the right of free speech. For an explainer of what an anti-SLAPP motion is in layperson’s terms, see this “lawsplainer” written by Ken White of Popehat.)

The Ninth Circuit issued an order granting CMP’s emergency motion in part. The Ninth Circuit’s order prohibits the district court from issuing “a preliminary injunction or requiring the defendants to produce any discoverable materials or to respond to interrogatories or inquiries, including whether they intend to invoke the Fifth Amendment as to specific questions or document requests.”

Such appellate orders staying discovery for a brief period of time are relatively commonplace in California. The stay simply places the litigation in a brief holding pattern while the appellate court has an opportunity to consider the arguments presented by the defendants, and the arguments presented by the plaintiff in response.

In a phone interview with Rewire, counsel for NAF, Derek Foran of Morrison & Foerster called Orrick’s refusal to permit the corporate defendants to plead the fifth “the big headline.”

“Pending a decision from the Ninth Circuit on the writ petition, the district court is ready to set an aggressive discovery schedule and a schedule on the preliminary injunction motion,” Foran said. “We’ve been fighting for several weeks to get access to critical discovery, including what information Defendants stole from NAF, but we appear to be on the threshold of obtaining discovery.”

“But we need to wait for the Ninth Circuit,” he added.

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