Ninth Circuit Deals Blow to Group Behind Planned Parenthood Smear Videos

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Ninth Circuit Deals Blow to Group Behind Planned Parenthood Smear Videos

Imani Gandy

In a decisive victory, the National Abortion Federation can now obtain a preliminary injunction blocking the Center for Medical Progress from releasing any further videos containing alleged stolen information.

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

A three-judge panel of the Ninth Circuit Court of Appeals on Wednesday handed the National Abortion Federation (NAF) a decisive victory in NAF’s ongoing discovery battle with the Center for Medical Progress (CMP), the anti-choice front group behind the Planned Parenthood attack videos.

The Ninth Circuit dissolved the discovery stay that it had ordered in favor of CMP a week ago, and ruled that NAF is entitled to discovery in its efforts to obtain a preliminary injunction blocking CMP from releasing any further videos containing information NAF alleges CMP stole.

NAF has so far been successful in its bid to stop CMP from releasing additional videos. In late July, U.S. District Court Judge William Orrick issued a temporary restraining order (TRO) in NAF’s favor, blocking CMP from publishing videos containing information that NAF alleges CMP stole.

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NAF contends that CMP signed confidentiality and nondisclosure agreements by which CMP never intended to be bound in order to gain access to NAF’s annual meetings and members fraudulently and under false pretenses.

CMP maintains that the TRO and any preliminary injunction that Orrick might issue constitutes prior restraint, or pre-publication censorship, and is a violation of CMP’s First Amendment rights.

NAF maintains that CMP waived its First Amendment rights when it signed the confidentiality agreements in order to infiltrate NAF’s private events, and has asked CMP to provide information and deposition testimony so that NAF can prove this allegation and convert the TRO into a preliminary injunction.

Orrick agreed with NAF, and ordered CMP to provide limited discovery to NAF.

CMP has stalwartly attempted to thwart NAF’s efforts to obtain discovery, first by claiming that David Daleiden, the head of CMP, and his co-defendant Troy Newman, the head of the radical anti-choice group Operation Rescue and an officer for CMP, intend to plead the Fifth Amendment.

CMP claimed for itself and its corporate co-defendant BioMax the right to plead the Fifth Amendment, despite the fact that no court in history has ever found that a corporation has Fifth Amendment rights.

Orrick ruled last week that neither of the corporate defendants could plead the Fifth Amendment. The judge also ruled that the defendants, Daleiden and Newman, may not avoid responding to NAF’s discovery requests by asserting a blanket right against making self-incriminating statements, but are required to assert their Fifth Amendment rights in response to each individual request for information.

NAF counsel Derek Foran was pleased with the Ninth Circuit’s ruling.

“The Ninth Circuit denied the writs and dissolved the stay,” he said in an interview with Rewire. “We’re very pleased that we’re going to get the discovery that we’ve been asking for for several weeks now.”

CMP must now respond to NAF’s discovery requests, which may require CMP to turn over information detailing how it infiltrated NAF’s meetings, and what information about NAF members, including Planned Parenthood, it secretly recorded. This may include potentially incriminating documents and deposition testimony about the fake identification cards that NAF alleges CMP created and used in order to steal information from NAF, as well as other violations of federal and state law.

CMP also has the option of seeking relief from the U.S. Supreme Court, although it is unclear what the basis for Supreme Court relief would be, since the Ninth Circuit made it clear in its ruling that it was ruling only on the discovery dispute, and not the underlying merits of the lawsuit. “In this order, we do not consider any difficult constitutional questions nor express any view of the merits of the underlying suit,” the three-judge panel wrote. “We merely decide a narrow question arising from a discovery dispute.”

When asked whether he thought CMP would ask the U.S. Supreme Court for relief, Foran said he wasn’t sure.

“I don’t know the answer one way or the other, but I can’t imagine why they would do that. It was a discovery dispute about the interpretation of a state statute,” he said. “The court made it clear that this is a discovery dispute and not related to the underlying First Amendment issues.”