UPDATE, December 4, 10:00 p.m.: On Friday afternoon, David Daleiden and the Center for Medical Progress appealed the Ninth Circuit’s ruling to the U.S. Supreme Court and requested an emergency stay of discovery. Their request was denied Friday evening.
A three-judge panel of the Ninth Circuit Court of Appeals handed David Daleiden and his anti-choice front group, the Center for Medical Progress (CMP), another decisive loss on Thursday.
The court rejected Daleiden and CMP’s efforts to withhold from the National Abortion Federation (NAF) the names of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy” on the basis that disclosing that information to NAF would violate Daleiden’s First Amendment rights to associational privilege.
Daleiden and CMP will now have to comply with NAF’s request under the court’s order.
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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 “body parts.”
Orrick ordered expedited discovery so that NAF 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.
In response to NAF’s discovery requests, Daleiden and CMP provided emails but redacted the email addresses and names of most of the recipients and senders of those emails. NAF demanded that Daleiden and CMP provide unredacted documents so it could determine the identities of the individuals behind those emails.
CMP and Daleiden protested. They argued that providing the identities of those people, what they call a “membership list,” would be premature since the discovery at issue pertains only to the preliminary injunction. They claimed that providing a membership list 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 were also concerned that if the identities of the people who were involved with or funded his sting operation were exposed, they would be subjected to threats and intimidation. To support this claim, Daleiden and CMP filed an affidavit from an anonymous individual—Chris Doe—who attested that he “would not have contributed to CMP if I had known that NAF or other pro-abortion groups would learn my identity.”
Judge Orrick rejected Daleiden and CMP’s claims. He ruled that the thin record—the solitary affidavit from Chris Doe—was not enough to overcome NAF’s need for the information, and ruled that the limited disclosure of the identities of individuals and organizations who received confidential NAF information was appropriate.
He ordered that the disclosure remain confidential initially, but said that upon a fuller record on the merits of NAF’s conspiracy claims, he might “determine that public disclosure of some or all of these identities might be appropriate.”
As for CMP and Daleiden’s First Amendment claims, Orrick noted that this limited disclosure “adequately protects any First Amendment associational rights of CMP and these few individuals/organizations, if such rights exist,” although he did not weigh in on whether or not Daleiden and CMP have associational rights that would be infringed by the limited disclosure.
CMP and Daleiden appealed Orrick’s ruling to the Ninth Circuit Court of Appeals. A three-judge panel on Thursday sided with Orrick, finding that his order did not require CMP and Daleiden to disclose “the identities of its members, supporters, and donors.” The court also ruled that NAF had met its burden of demonstrating that “the identities of the recipients who received confidential information are highly relevant to the scope of any preliminary injunction.”
Daleiden and CMP’s attempt to avoid disclosure has now twice been rejected, by both the district and appellate court.
NAF President and CEO Vicki Saporta in a statement tied the ongoing discovery battle to the recent shooting in Colorado Springs. “Every day that the defendants refuse to disclose who they gave access to our confidential information puts our members in harm’s way,” Saporta said in a statement. “Given the recent attack at one of the Planned Parenthood affiliates who was featured in the defendants’ discredited videos, it is more important than ever to protect the safety and security of our members.”