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National Abortion Federation v. Center for Medical Progress

United States District Court, N.D. California

July 17, 2017

NATIONAL ABORTION FEDERATION, Plaintiff,
v.
CENTER FOR MEDICAL PROGRESS, et al., Defendants.

          ORDER OF CIVIL CONTEMPT

          William H. Orrick United States District Judge.

         Based on the evidence before me, the record in this case, the failure of defendant Center for Medical Progress (CMP), defendant David Daleiden, respondent Steve Cooley and respondent Brentford J. Ferreira to provide sufficient evidence in response, and for the reasons discussed below, I HOLD CMP, Daleiden, Cooley, and Ferreira in CIVIL CONTEMPT for multiple violations of the February 5, 2016 Preliminary Injunction (PI). As detailed below, these individuals and the entity willfully violated the clear commands of the PI by publishing and otherwise disclosing to third-parties recordings covered by the PI.[1]

         BACKGROUND

         I. PRELIMINARY INJUNCTION

         The parties and respondents are familiar with the factual and procedural history of this case. Significant to the issue of contempt, on February 5, 2016, I entered a preliminary injunction (affirming a prior existing Temporary Restraining Order), mandating the following:

Pending a final judgment, defendants and those individuals who gained access to NAF's 2014 and 2015 Annual Meetings using aliases and acting with defendant CMP (including but not limited to the following individuals/aliases: Susan Tennenbaum, Brianna Allen, Rebecca Wagner, Adrian Lopez, and Philip Cronin) are restrained and enjoined from:
(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;
(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and
(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

         Preliminary Injunction [Dkt. No. 354] at 42. The PI was affirmed by the Ninth Circuit. National Abortion Federation v. Center for Medical Progress, 2017 WL 1164450 (9th Cir. March 29, 2017).[2]

         II. CRIMINAL INVESTIGATION AND COMPLAINT

         On April 5, 2016, the California Attorney General executed search warrants and seized Daleiden's computers and devices containing materials covered by the PI. Foran Decl., Ex. A. (Affidavit in Support of Arrest Warrant). A few days later, Daleiden retained Steve Cooley and Brentford J. Ferreira of Steve Cooley & Associates (SCA) to represent him in any criminal proceedings. On April 15, 2016, NAF's counsel sent a letter to the California Attorney General, notifying the AG that the seized materials are covered by the PI in this case. In July 2016, Ferreira and Deputy Attorney General (DAG) Johnette Jauron meet with the Honorable Terri Jackson of the San Francisco Superior Court to consolidate proceedings related to the search warrants and venue them in San Francisco. During that meeting, Presiding Judge Jackson ordered the DAG to provide all seized evidence to SCA so that SCA could review the evidence for materials that were privileged in connection with this civil case.

         On March 28, 2017, the California Attorney General's Office issued a press release that it had filed a criminal complaint against Daleiden and Sandra Susan Merritt. Foran Decl., Ex. A. (Criminal Complaint). The Criminal Complaint alleges that Daleiden and Merritt illegally tape recorded 14 “Does” on various dates in California, the majority of which occurred during NAF's 2014 Annual Meeting in San Francisco. See generally Criminal Complaint. On the same day as the announcement, the Hon. Carol Yaggy of San Francisco Superior Court sealed the declaration in support of the arrest warrant. Id.

         On May 3, 2017, Daleiden was arraigned and the Criminal Complaint was filed with Judge Yaggy's sealing order. On the same day, SCA filed a demurrer challenging the sufficiency of the Criminal Complaint on behalf of Daleiden. Foran Decl., Ex. D (Demurrer). Footnote 1 of the Demurrer contained a link to a YouTube “playlist” containing 337 videos “published” by CMP and labelled “San Francisco Superior Court Defense Filing.” Foran Decl., Ex. E (“Defense Filing” playlist).[3] The Demurrer was accompanied by a Request for Judicial Notice (RJN) asking the Superior Court to take notice of the videos under California Evidence Code § 452. Foran Decl., Ex. F. Exhibit 1 to the RJN included the same YouTube link to the Defense Filing playlist as Footnote 1. Foran Decl. ¶ 13. 334 of the videos “published” by CMP in the YouTube Defense Filing playlist were recordings included within the scope of the PI. Foran Decl., ¶ 12. Videos 4 through 336 contain raw unedited footage taken by Daleiden at NAF's Annual Meetings in San Francisco and Baltimore. Id. & Ex. E.[4]

         SCA did not seek to seal Footnote 1 of the Demurrer or Exhibit 1 to the RJN. Foran Decl., ¶ 13. The Defense Filing playlist link was described by SCA as “private” in the Demurrer, but anyone could use that link to access the playlist. Foran Decl., ¶ 12. A flash drive containing the same videos was also submitted to the Superior Court on May 3, 2017. Demurrer, Footnote 1.[5]

         On May 16, 2017, the DAG sent SCA a thumb drive containing just over 20 excerpts of videos that were the basis of the Criminal Complaint. The thumb drive was password protected.

         III. FURTHER PUBLISHING AND DISCLOSURE OF PI MATERIALS

         Also on May 3, 2017, another video was uploaded to CMP's YouTube channel. This 3 minute and 9 second video was titled “Preview.” Foran Decl., Ex. G. It was marked as “private/unlisted” so members of the public could not (yet) know it was there. Foran Decl. ¶ 14. The Preview video contains fifteen “clips” or segments, all or substantially all of which were taken at NAF's 2014 and 2015 Annual Meetings in San Francisco and Baltimore and covered by the PI. Foran Decl. ¶ 4. The video features CMP's logo and website in the bottom right corner and identifies the titles and affiliations/locations of eleven NAF members. Foran Decl. ¶ 5. The video concludes with a request for viewers to “share” the video, to “hold Planned Parenthood accountable for their illegal sale of baby parts” and “to learn more at centerformedicalprogress.org.” Id. Only seven of the eleven NAF members identified in the Preview video are Does in the Criminal Complaint. Transcript of July 11, 2017 Hearing at 42:1-4.

         Between May 12 and May 24, 2017, a further 2 hours and 9 minutes of PI materials were uploaded to CMP's YouTube channel. Foran Decl. ¶¶ 9-10. These 14 videos were taken at NAF's Annual Meetings in San Francisco and Baltimore, and are excerpts of recordings of each of the Does from the Criminal Complaint. Foran Decl. ¶ 10. The videos, plus three others not covered by the PI, were collected into a playlist titled “San Francisco Superior Court Defense Filing - Accusers.” Foran Decl., Ex. C (hereafter “Accusers” playlist). The videos and playlist were marked as private/unlisted. Foran Decl. ¶ 9.

         On May 24, 2017, at 8:43 p.m. Eastern Standard Time (“EST”), the online blog “The Next Right Step” published a “Breaking News” story that referred to SCA's launch of a media resource page regarding SCA's representation of Daleiden. Foran Decl., Ex. H; Second Supp. Foran Decl., Ex. A. The story provided links to the SCA “Media Page” and includes links to the Criminal Complaint, Demurrer, RJN, and all the video footage “referenced” in the Criminal Complaint. Id., Ex. H. On May 25, 2017, at 12:01 a.m. EST, the Preview video was published on the National Review website. Foran Decl., Ex. J; Foran Second Supp. Decl., Ex. B. The video was embedded on the site and described as a “shocking new video” “from The Center for Medical Progress.” Id. The National Review website also linked to SCA's Media Page where “all the video footage” referenced by the California Attorney General's office “can be found.” Id. At 5:47 a.m. EST, the Susan B. Anthony list published the Preview video on Twitter, also describing it as a “shocking new video” attributed to CMP. Foran Decl., Ex. L. Then at 8:15 a.m. EST, the Preview video was published by another Twitter user. Foran Decl., Ex. N.

         At some point on May 25, 2017, SCA's Media Page went live and was accessible to the public from the SCA website. Foran Decl. ¶ 4. NAF's counsel declares on information and belief that the page went live in “the early hours” of May 25, 2017. Id. The first thing on the SCA Media Page is an embedded copy of the Preview video. Foran Decl., Ex. B. The Media Page goes on to announce SCA's representation of Daleiden and acknowledges the existence of the Preliminary Injunction “preventing David from posting any videos taken at the 2014 and 2015 NAF conventions.” Id. The SCA Media Page then linked to the Demurrer and RJN (and Exhibit 1), from which readers could see the “private” YouTube link and get to the CMP “Defense Filing” playlist, allowing access to the 337 videos (including the 144 hours of raw footage from the NAF San Francisco and Baltimore conferences). Foran Decl. ¶ 11. The 14 Does from the Criminal Complaint were also identified on the SCA Media Page. Id. Finally, viewers were provided a link to access the Accusers playlist containing the “video-recordings related to interviews” with the Does. Id.; see also Foran Decl. ¶ 9.

         IV. TAKE DOWN ORDER

         NAF's counsel became aware of the disclosures of the PI material around 8:30 a.m. on May 25, 2017, and immediately contacted defense counsel in this civil case, demanding immediate removal of the materials from YouTube and SCA's website. Foran Decl., ¶ 22 & Ex. O. Shortly thereafter, NAF's counsel contacted SCA and likewise demanded removal of all PI materials. Foran Decl., ¶¶ 23-24 & Ex. P. NAF then alerted me to the disclosures. I set a telephonic hearing for 4:00 p.m. Pacific Standard Time that day. Dkt. No. 408. Shortly before the 4:00 p.m. telephonic hearing, YouTube blocked access to the links on its site. Foran Decl. ¶ 26.

         During the telephonic conference, I directed the parties that the links to PI materials on the SCA website and YouTube should “be taken down within the next 15 minutes, if they haven't been taken down already.” May 25, 2017 Transcript [Dkt. No. 413] at 6:12-15:11:23-24. Shortly after the hearing, but before my written Order was issued, the list of “Doe” names and the Preview video were removed from the SCA website. Foran Decl. ¶ 28. The links to the YouTube playlists, however, remained. Id.

         At 5:24 p.m. on May 25, 2017, my Order Directing Compliance with Preliminary Injunction and Order to Show Cause re Contempt was filed. Dkt. No. 409. Under that Order:

To protect the integrity of the Preliminary Injunction and given the significant privacy concerns at stake, Daleiden is hereby ORERED to require his counsel - Steve Cooley and Brentford J. Ferreira of Steve Cooley & Associates and all those working with or for his counsel -IMMEDIATELY to take down from their website all links to recordings covered by the Preliminary Injunction and remove all references to the identities of any NAF members who were subjects of the recordings covered by the Preliminary Injunction. Daleiden and his counsel are also ORDERED IMMEDIATELY to undertake all efforts to remove from YouTube the recordings covered by the Preliminary Injunction. If Daleiden, his counsel, or any defendant in this action or their counsel has caused any of the information covered by the Preliminary Injunction to be published or posted in any other manner since entry of the Preliminary Injunction, they are ORDERED IMMEDIATELY to take it down.

         May 25, 2017 Order at 2. However, the links to YouTube playlists remained on the SCA Media Page through May 26 and 27. Foran Decl. ¶ 28. The SCA media page was taken down sometime over the following weekend. Id.[6]

         V. ADDITIONAL DISSEMINATION OF THE PI MATERIALS

         Despite the blocking on YouTube, and the belated actions of SCA in removing the Preview video, Doe names, and eventually the YouTube links, the PI materials were accessed and shared by numerous third parties. In one instance, the 144 hours of the raw footage were loaded to a site for public viewing (that site was subsequently blocked through NAF's efforts). Foran Decl. ¶ 31. The Preview video - containing excerpts of PI material and disclosing the names of the NAF members shown - was posted on Facebook and viewed more than 469, 000 times and shared 13, 400 times. Foran Decl., ¶¶ 33-34 & Ex. V.

         VI. NAF'S RESPONSE

         After being alerted to the disclosures, NAF placed its security team on “high alert.” Declaration of Senior Director of Security Gannon in Support of NAF's Response to Order to Show Cause re Contempt [Dkt. No. 416-4] ¶ 3. NAF immediately contacted all of the members shown or mentioned in the Preview video or disclosed as a Doe on SCA's website to advise them of the situation and encourage them to take precautions to ensure their safety. Gannon Decl. ¶ 3. NAF's outside security firm was asked to monitor social media platforms for threats made against any of its members who appeared in the Preview video, as well as any of the identified Does. Id. Within one hour, NAF's outside security firm reported back, detailing a number of what it considered threats; defendants characterize them as merely rhetoric. Id. ¶ 4.

         The monitoring by NAF and its outside security firm has confirmed that since May 25th, NAF and its members whose identities were disclosed in the Preview video and on SCA's website have seen a sharp increase in “negative and disturbing” threats. Id. ¶ 8; see also Gannon Supp. Declaration [Dkt. No. 462-9] ¶¶ 2-4.[7] For example, one NAF member shown in the “Preview” video received direct written communications just hours after it was published calling them “evil, ” “a baby killer, ” and a “systematic murderer.” Gannon Decl. ¶ 6. Another NAF member's image- utilizing a headshot from the “Preview” video - has been circulating online and generating comments that caused the NAF member to hire a private security firm to drive them to and from work and caused other disruptions to their and their families lives. Id. ¶ 7.

         NAF security personnel have met with other NAF members and members of their families to monitor and provide recommendations on their security. Id. ¶ 9. It was forced to divert both internal and outside consultant staff from other projects to work on monitoring and responding to the disclosure of the PI information. Gannon Decl. ¶¶ 3, 10; Gannon Supp. Decl. [Dkt. No. 462-9] ¶¶ 2.

         According to NAF's Senior Director of Communications & Membership, as of June 1, 2017, NAF had incurred $1, 568.26 in direct security costs to fly a member of their Security Staff to conduct security reviews of the home and office of a NAF member shown in the Preview video. Fowler Decl. ¶ 3. Through June 30, 2017, NAF diverted approximately $26, 000 in staff time from regular tasks as a result of the disclosures, assigning those staff to monitor and respond to threats and conduct research into threats related to the disclosures. Supplemental Fowler Decl. ¶ 4 [Dkt. No. 462-5] ¶ 4. An additional $1, 282.50 has been incurred for outside consultant staff. Id. & Ex. B. One NAF member facility has been invoiced for direct security costs of $11, 411.92 to provide armed security for a physician featured in the Preview video. Id. ¶ 5 & Ex. C.

         Finally, as of the close of business on Wednesday, May 31, 2017, attorney fees incurred on behalf of NAF as a result of the disclosures amount to $96, 610.50. Foran Decl. ¶ 35.

         VII. OSC RE CONTEMPT HEARING

         Prior to the OSC re Contempt Hearing, I issued an order identifying the timeline of pertinent events relevant to the OSC hearing. The defendants and respondents offered no material disagreement to the timeline or the evidence offered by NAF. I also posed questions that I intended to ask of civil defense counsel, criminal defense counsel, and Daleiden. July 10, 2017 Order Concerning OSC Hearing [Dkt. No. 468]. The questions were:

[For] Ms. Short, Mr. LiMandri, and the other Civil Case Defense Counsel:
• When did you first become aware of the existence of the “Preview” Video? How?
• When did you first become aware of the existence of the “Defense Filing” playlist videos on CMP's YouTube channel? How?
• What steps did you take to comply with my May 25, 2017 Order requiring all efforts be made to take down links to the ...

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