United States District Court, N.D. California
ORDER OF CIVIL CONTEMPT
William H. Orrick United States District Judge.
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.
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
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).
CRIMINAL INVESTIGATION AND COMPLAINT
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.
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.
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). 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. &
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.
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.
FURTHER PUBLISHING AND DISCLOSURE OF PI MATERIALS
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.
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.
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.
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.
TAKE DOWN ORDER
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.
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.
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
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.
ADDITIONAL DISSEMINATION OF THE PI MATERIALS
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.
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.
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. 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.
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]
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.
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.
OSC RE CONTEMPT HEARING
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
[For] Ms. Short, Mr. LiMandri, and the other Civil Case
• 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