The Center for Medical Progress’ (CMP) streak of bad legal luck continued last week, as the anti-choice front group lost its latest bid to avoid providing information to the National Abortion Federation (NAF) about the names and identities of the people involved in CMP’s smear campaign against Planned Parenthood.
NAF is gathering information through a legal vehicle known as discovery in order to make its case in court that United States District Court Judge William Orrick should convert the temporary restraining order he issued in late July into a preliminary injunction.
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 certain Planned Parenthood affiliates, are engaged in illegal trafficking of fetal tissue.
NAF sought a temporary restraining order blocking any further release of the attack videos in order to protect its members from anti-choice activists’ harassment and violent threats.
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Orrick issued the temporary restraining order, and ordered expedited discovery so that NAF could gather evidence to support its effort to obtain a preliminary injunction blocking CMP and David Daleiden—the group’s leader—from releasing additional footage or other materials that NAF alleges the anti-choice front group fraudulently acquired.
One key category of information sought by NAF is the names and identities of the people who received a report that CMP has said it distributed regarding its activities at NAF’s meetings, along with the names and identities of the CMP agents who infiltrated NAF’s meetings in 2014 and 2015.
Daleiden and CMP protested that NAF’s requests for the names and identities of the people involved with their campaign against Planned Parenthood, what they call a “membership list,” would be premature since the discovery ordered by Orrick pertains only to the preliminary injunction. They also claimed that turning over that information would intrude on Daleiden’s right to associational privacy under the First Amendment, stating that “[t]he First Amendment provides strong protections to political activists who seek out like-minded individuals with which to brainstorm ideas for their activism.”
Daleiden and CMP additionally argued that turning over the “membership list” might jeopardize the Fifth Amendment rights of the people on it.
Orrick disagreed in a four-page order issued on October 30.
“I find that for purposes of allowing NAF to prepare for the Preliminary Injunction proceedings, defendants SHALL disclose to NAF (by providing unredacted documents and written responses) the identities of individuals and organizations who received confidential NAF information,” Orrick wrote.
He ordered that the information be maintained confidential and protected from public disclosure in accordance with a protective order in place between the parties to the lawsuit.
Orrick did not make any particular findings as to whether Daleiden and CMP’s assertion of First Amendment associational rights was legitimate, but reiterated his conclusion that “the Protective Order adequately protects any First Amendment associational rights of CMP and these few individuals/organizations, if such rights exist.”
Orrick also ruled that Daleiden could not assert Fifth Amendment rights on behalf of anyone but himself.
“Daleiden cannot refuse to identify these individuals based on those individual’s [sic] Fifth Amendment rights,” he wrote. Orrick requested that NAF and Daleiden file supplemental briefs addressing whether Daleiden “can appropriately assert his personal Fifth Amendment right to shield the names of these individuals and whether any such privilege has been waived.” Those briefs were due last Wednesday.
CMP and Daleiden have filed documents asking the court to either reconsider its ruling that the so-called membership list must be produced or to put a temporary hold on the case while CMP and Daleiden pursue their First Amendment associational rights claim in appellate court.
If Orrick refuses both requests, CMP and Daleiden will likely ask the Ninth Circuit to stay the case and review their First and Fifth Amendment claims.
Although NAF has thus far been successful in stymieing Daleiden’s efforts to release additional attack videos, 275 minutes of footage were published on the YouTube channel of hacker Andrew “Weev” Auernheimer in coordination with Charles C. Johnson, the controversial conservative activist and publisher of GotNews. Johnson claims that he received an anonymous email containing the video footage from someone with the user name “patriotgeist,” according to the Washington Post.
The law firm representing NAF, Morrison & Foerster, sent a cease and desist letter to Johnson, which Johnson has said he intends to contest. NAF subpoenaed Johnson, demanding that he produce any communications (emails, text messages, instant messages, and the like) with David Daleiden and “patriotgeist.”
In a blog post dated November 2, Johnson claims that he doesn’t have any such unreleased documents, writing, “Johnson is unsure of how to comply with material that doesn’t exist.”
Johnson filed documents in court objecting to the subpoena, but Orrick rejected Johnson’s objections and ordered him to produce the documents NAF requested and to sit for a deposition on November 16.
The source of the leak is unclear. Johnson claims that he received the video footage from a congressional leak. Orrick, however, is skeptical.
“On October 22, the defendants notified me that a third party allegedly received videotapes covered by the TRO from a ‘source on Capitol Hill’ and had posted them online,” Orrick wrote in his October 30 order. “Given the security procedures imposed by the House committee that defendants described during the last hearing, it is unclear whether defendants’ representation is accurate.”
While it is accurate that Johnson is claiming that the leak came from Congress, it is unclear whether that is true, and if it is, who the source of the leak is.
NAF CEO Vicki Saporta said in a statement that Congress needs to “conduct a full investigation” to determine whether a member of Congress was the source of the leak.