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Planned Parenthood Federation of America, Inc. v. Center For Medical Progress

United States District Court, N.D. California

May 31, 2018

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs,
v.
CENTER FOR MEDICAL PROGRESS, et al., Defendants.

          ORDER ON JOINT DISCOVERY LETTERS RE: DKT. NO. 166, 222

         The parties filed an omnibus joint submission consisting of five individual discovery motions addressing 17 separate disputes which they labeled P1 through P10 and D1 through D7. [Docket Nos. 166 (Exs. A-E), 191.] After the court scheduled a hearing, which was continued twice at the parties' request, the parties reached agreement on some disputes and narrowed others, and submitted further briefing on some of them. [Docket Nos. 218, 222, 224, 230, 233.]

         The court held a hearing on February 8, 2018. [Docket No. 229 (Minute Order).] Following the hearing, the court twice ordered the parties to submit additional briefing regarding Defendants' privilege assertions and objections. [Docket No. 237, 256.] The parties timely filed the additional briefing. [Docket No. 242, 259.] The court now enters this order on the following disputes which are ripe for adjudication: P1, P2, P3, P4, P5, P6, P7, P8, P9, and P10.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs are Planned Parenthood Federation of America, Inc. (“PPFA”), seven individual California Planned Parenthood affiliates, Planned Parenthood of the Rocky Mountains, Planned Parenthood Gulf Coast, and Planned Parenthood Center for Choice. Defendants are Center for Medical Progress (“CMP”), which holds itself out as a charitable trust; BioMax Procurement Services, LLC (“BioMax”); David Daleiden, aka Robert Sarkis, who is BioMax's Procurement Manager and Vice President of Operations as well as CMP's CEO; CMP Secretary Troy Newman; CMP Chief Financial Officer Albin Rhomberg; BioMax registered agent Phillip S. Cronin; BioMax CEO Sandra Susan Merritt, aka Susan Tennebaum; and BioMax Procurement Technician Gerardo Adrian Lopez. [Docket No. 59 (First Amended Complaint, “FAC”).]

         Plaintiffs allege in the first amended complaint (“FAC”) that Defendants created a “complex criminal enterprise . . . involv[ing] fake companies, fake identifications, and large-scale illegal taping” of reproductive health care conferences and private meetings in order to advance their goal of “interfering with women's access to legal abortion.” FAC ¶ 1. According to Plaintiffs, Defendants' conspiracy focused on Planned Parenthood affiliates' facilitation of fetal tissue donation. Defendants set up a fake company called BioMax that falsely held itself out as a legitimate fetal tissue procurement company. Id. at ¶ 5. The individual defendants pretended to be officers and employees of BioMax using pseudonyms and fake names. They used those fake identities to gain access to private conferences held by Planned Parenthood and the National Abortion Federation. Once admitted, they wore hidden video cameras and secretly taped hundreds of hours of conversations with Plaintiffs' staff. Id. Plaintiffs allege that Defendants then “leveraged the ‘professional' relationships they made at the conferences” to obtain access to individual Planned Parenthood doctors and affiliates in private meetings, some of them held inside secure Planned Parenthood offices and clinical spaces in Colorado and Texas. Id. at ¶ 6.

         Plaintiffs assert that Defendants then went public with a “vicious online video smear campaign, ” called the “Human Capital Project.” Id. at ¶¶ 7, 124. Starting in July 2015, Defendants allegedly released a series of YouTube videos purporting to show that Planned Parenthood violated federal law related to tissue donation. Id. at ¶¶ 7, 128. The videos were heavily manipulated, with critical content deliberately deleted and disconnected portions sewn together to create a misleading impression. Id. at ¶¶ 7, 129, 133, 137, 139, 141. Plaintiffs allege that after Defendants released the videos, there was a “dramatic increase in the threats, harassment, and criminal activities targeting abortion providers and their supporters, ” as well as Planned Parenthood health centers. Id. at ¶ 8.

         Plaintiffs assert fifteen claims for relief, including claims against all Defendants for violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(c), and conspiracy to violate RICO, 18 U.S.C. § 1962(d); and violation of the federal Wiretap Act, 18 U.S.C. § 2511, against Daleiden, Merritt, Lopez, CMP, BioMax, and Unknown Co-Conspirators. Plaintiffs bring the remaining thirteen claims under state law. These include claims for breach of contract, trespass, and violation of state wiretapping laws.

         This case is related to National Abortion Federation v. Center for Medical Progress, et al., 15-cv-3522 WHO, which was filed on July 31, 2015. [Docket No. 10 (“NAF”).] In that action, Plaintiff NAF, the professional association of abortion providers, sues CMP, BioMax, Daleiden, and Newman, alleging claims based on the same conduct at issue in this case-namely, that CMP, Daleiden, and Newman set up a fake company known as BioMax that held itself out as a legitimate fetal tissue procurement organization. NAF alleges that the individuals used fake names and identities to gain access to NAF's meetings and then released heavily edited, misleading videos resulting in anti-abortion harassment-the so-called “Human Capital Project.”

         B. Procedural History

         Plaintiffs filed the FAC on March 24, 2016. Defendants moved to dismiss the FAC and separately moved to strike the state law claims pursuant to California's anti-SLAPP statute. [Docket Nos. 78, 79, 81, 87.] The Honorable William H. Orrick denied the motions to dismiss and strike on September 30, 2016.[1] [Docket No. 124.] Defendants appealed the denial of the anti-SLAPP motions, which automatically stayed all proceedings regarding the state law claims, including discovery. [Docket Nos. 129 (Notice of Appeal), 146.] Defendants then moved to stay the remaining federal claims pending resolution of their appeal. [Docket No. 138 (Mot. to Stay).] Judge Orrick denied the motion on December 22, 2016, and ordered that written discovery and document production on the RICO and Wiretap Act claims “shall not be stayed and shall continue.” [Docket No. 146.]

         In May 2016, Judge Orrick denied CMP, BioMax, and Daleiden's motion to quash a subpoena issued by Plaintiffs to NAF. That subpoena sought the production of all documents, information, and recordings produced by the defendants in the NAF case, as well as copies of all transcripts and exhibits for depositions taken of any of the NAF defendants. [Docket No. 90 (Order on Mot. to Quash).] In denying the motion to quash, Judge Orrick ordered that Plaintiffs “are bound by the provisions of the NAF v. CMP Protective Order with respect to any and all uses of the materials produced pursuant to the subpoena.” Id. On August 31, 2016, Judge Orrick entered a stipulated protective order in this case. [Docket No. 117.]

         On June 14, 2017, the parties filed the present submission to which they attached five joint letters addressing their discovery disputes. Following resolution of Defendants' motion to disqualify Judge Orrick, he referred discovery to the undersigned on October 18, 2017. [Docket No. 187.] Although the court set a hearing for December 21, 2017, the parties twice requested that it be postponed. [Docket Nos. 189, 208, 213.] During that time, the parties continued to meet and confer and provided updates regarding the status of the disputes discussed in the five individual joint letters. Ultimately, the parties sought adjudication of issues in three of the letters, which were labeled Exhibits A, B, and C. [See Docket Nos. 218, 224.]

         On February 8, 2018, the court held a hearing regarding the following disputes: P1, P2, P3, P4, P5, P6, P7, P8, and D2.[2] As to D2, the court ordered the parties to meet and confer further and to submit a joint letter if disputes remained.[3] [Docket No. 229 (Minute Order).] In compliance with four subsequent court orders (Docket Nos. 219, 225, 237, 256), the parties filed supplemental briefing and/or evidence regarding disputes P1 through P6, P8, and P9. [Docket Nos. 222, 230, 233, 242, 259.] The disputes determined through this order are P1, P2, P3, P4, P5, P6, P7, P8, P9, and P10.

         On May 16, 2018, after the parties completed their briefing on the present motions, the Ninth Circuit affirmed Judge Orrick's decision denying Defendants' anti-SLAPP motion. Planned Parenthood Fed. of Am., Inc. v. Ctr. for Medical Progress, ___ F.3d ___, 2018 WL 2223990 (9th Cir. May 16, 2018) (affirming district court's application of Rule 12(b)(6) standard to anti-SLAPP motion to strike challenging legal sufficiency of the complaint); Planned Parenthood Fed. of Am., Inc. v. Ctr. for Medical Progress, ___ Fed.Appx. ___, 2018 WL 2229329 (9th Cir. May 16, 2018) (affirming district court's denial of anti-SLAPP motion to strike).

         II. LEGAL STANDARDS

         Federal Rule of Civil Procedure 26 provides

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006). The party seeking discovery has the initial burden of establishing that its request satisfies Rule 26(b)(1)'s relevancy requirement, La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012), while “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed.R.Civ.P. 26, Advisory Committee Notes to 2015 Amendments, Subdivision (b)(1). “[T]he party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” La. Pac. Corp., 285 F.R.D. at 485.

         Federal Rule of Civil Procedure 26 also provides that a party withholding information under a claim that it is privileged or subject to protection as trial preparation material must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. Fed. R. Civ. Proc. 26(b)(5)(A). A privilege should be asserted within thirty days of a request for production. See Fed. R. Civ. P. 34(b)(2)(A).

         This court exercises federal question jurisdiction over Plaintiffs' federal RICO and Wiretap Act claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiffs' pendent state law claims. The Ninth Circuit has held that “[w]here there are federal question claims and pendent state law claims present, the federal law of privilege applies.” Agster v. Maricopa Cty., 422 F.3d 836, 839 (9th Cir. 2005). The court will therefore rely on federal law in its analysis.

         III. DISCUSSION

         The disputes discussed in this order are P1, P2, P3, P4, P5, P6, P7, P8, P9, and P10. They involve Plaintiffs' efforts to compel further responses to requests for production (RFPs) and interrogatories from CMP, BioMax and Daleiden. The original briefing on these disputes is located in Exhibits A and B. With the exception of P7, all of the disputes are also the subject of supplemental briefing and/or evidence, which the court discusses where appropriate below.[4]

         A. P1, P2, & P3- RFP Nos. 3, 49, and 15

         In P1, P2, and P3, Plaintiffs challenge Defendants' responses to RFP Nos. 3, 49, and 15. RFP No. 3 seeks “[a]ll communications by or among any of the Defendants regarding investigation of Planned Parenthood.” Plaintiffs clarified that this RFP seeks “documents regarding the investigation that ultimately culminated in the release of videos called the Human Capital Project.” Ex. A at ECF 9.[5] RFP No. 49 seeks “[a]ll documents and recordings related to the Human Capital Project.” RFP No. 15 seeks “[a]ll documents and communications regarding your planning for the undercover investigation of Planned Parenthood.”

         An overview of the evolution of these disputes helps to explain the parties' current positions. Plaintiffs assert that CMP initially refused to produce any responsive documents other than those regarding planning for specific undercover operations as part of the Human Capital Project for the period March 1, 2013 to July 14, 2015. Defendants produced fewer than 50 communications between the members of the alleged conspiracy. [Docket No. 222 at 2.] In December 2017, defense counsel disclosed that there were an additional 2, 300 communications created before July 14, 2015 between Defendants and others that had not been produced, because “they were not deemed to be related to ‘planning for specific undercover operations.'” Id.

         CMP later agreed to produce all communications prior to July 14, 2015 “between Daleiden and any individual involved in planning or executing the infiltrations and recording of Plaintiffs' employees, and to produce all those related to the Human Capital Project, ” with the exception of two categories of communications which form the basis for the current dispute: 1) communications between Defendants and donors, other than those discussing specific investigations; and 2) communications regarding “publication” of the videos. Id. at 4. Defendants contend that these two categories of communications should not be subject to discovery at this time because the only documents that are relevant to the federal claims are those relating to “planning for specific undercover operations.” Id. at 2. In subsequent briefing, Defendants added an assertion that communications with donors are protected by the First Amendment privilege, and communications regarding publication of the videos are protected by the journalist's privilege. [Docket No. 242 at 2-3; see also Docket No. 222 at 5.]

         Plaintiffs contend that Defendants' position is based on an overly narrow view of relevance. They assert that these two categories call for documents that are related to “general planning and discussion of the operation, ” and that such documents are relevant to intent, motive, causation, and the propriety of punitive damages. [Docket No. 222 at 2-3.] They also challenge Defendants' withholding of documents pursuant to the journalist's privilege and First Amendment associational rights. Id. at 3.

         1. Relevance

         At the time the parties completed briefing on these motions, per Judge Orrick's order, they were only permitted to seek discovery regarding Plaintiffs' federal claims for violation of RICO and the Wiretap Act during the pendency of Defendants' appeal. The Ninth Circuit has now affirmed Judge Orrick's denial of Defendants' anti-SLAPP motions. As the parties did not brief the relevance of the requested discovery to the state law claims, the court confines its analysis to the federal claims, and notes that the scope of relevance obviously has expanded as a result of the Ninth Circuit's ruling.

         Defendants argue that both of the disputed categories of communications are not relevant to the federal claims. [Docket No. 222 at 3.] They assert that the RICO claim rests solely on the allegation that Defendants produced or transferred fake identification documents. According to Defendants, these narrow predicate acts are insufficient to “make relevant everything about CMP and Daleiden's undercover journalism work: their intent, motives, goals, expectations, donors, media contacts, and connections with ‘anti-abortion activist groups.'” Id. Essentially, Defendants contend that Plaintiffs have alleged “a conspiracy to produce and transfer two fake IDs, ” and that these discrete acts delimit the scope of relevant discovery on the RICO claims. [Docket No. 242 at 3.]

         Defendants' position ignores Plaintiffs' allegations, as well as the elements that Plaintiffs must prove in order to establish a RICO violation. Plaintiffs allege that Defendants created a “complex criminal enterprise . . . involv[ing] fake companies, fake identifications, and large-scale illegal taping” of reproductive health care conferences and private meetings in order to advance their goal of “interfering with women's access to legal abortion.” FAC ¶ 1; see also id. at ¶ 150 (the purpose of the alleged enterprise “was to perpetrate a scheme targeting Plaintiffs and other Planned Parenthood affiliates in order to disrupt and burden their core mission to provide safe quality reproductive health care to women”). They further allege that Defendants' actions “constitute a conspiracy to demonize and intimidate Plaintiffs and to interfere with Plaintiffs' and other Planned Parenthood affiliates' operations.” Id. at ¶ 10. Defendants' enterprise engaged in a pattern of racketeering activity consisting of the predicate acts of production and transfer of fake IDs. Id. at ¶¶ 157, 160.

         By confining the scope of relevance to the predicate acts, Defendants' narrow framing ignores the fact that the alleged RICO conspiracy and enterprise are distinct from the predicate acts, and that the goals of the RICO enterprise are not limited to the predicate acts. As the Second Circuit has explained, “[t]he concepts of racketeering conspiracy, enterprise, and pattern . . . are not interchangeable, ” and “it is neither the enterprise standing alone nor the pattern of racketeering activity by itself which RICO criminalizes, but rather, the combination of these two elements.” United States v. Pizzonia, 577 F.3d 455, 463 (2d Cir. 2009) (quotation omitted). “[A] RICO conspiracy is never simply an agreement to commit specified predicate acts that allegedly form a pattern of racketeering. . . . [r]ather, it is an agreement to conduct or to participate in the conduct of a charged enterprise's affairs through a pattern of racketeering.” Id. (citation omitted) (emphasis in original).[6]

         Thus, Plaintiffs must establish more than the commission of the predicate acts in order to prove their RICO claim. They must establish a pattern of racketeering activity, which includes proving that Defendants committed the predicate acts of “knowing production or transfer of fake identification” in violation of 18 U.S.C. § 1028(a)(1), (2), and that the predicate acts are related. “Predicates are related if they have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535 (9th Cir. 1992) (quotation omitted). Additionally, Plaintiffs must establish the existence of the alleged associated-in-fact enterprise. To do so, they must show three structural features of the enterprise: “(A) a common purpose, (B) a structure or organization, and (C) longevity necessary to accomplish the purpose.” Eclectic Props. E, LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (citing Boyle v. United States, 556 U.S. 938, 946 (2009)).

         As to their 18 U.S.C. § 1962(d) RICO conspiracy claim, Plaintiffs must prove an agreement to violate RICO, but they need not prove an express conspiratorial agreement “as long as its existence can be inferred from the words, actions, or interdependence of activities and persons involved.” Oki Semiconductor Co. v. Wells Fargo Bank, Nat. Ass'n, 298 F.3d 768, 775 (9th Cir. 2002) (citing Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1562 (1st Cir. 1994)).

         Given the broad scope of discovery permitted by the Federal Rules, [7] and in light of the elements that Plaintiffs must prove to establish their RICO claims, Defendants' position that discovery must be narrowly circumscribed is untenable.

         Defendants cite Beck v. Prupis, 529 U.S. 494, 505 (2000), but it does not support their position. [See Docket No. 222 at 4-5.] In Beck, the Supreme Court considered the scope of a RICO private right of action for violation of section 1962(d), which makes it “unlawful for any person to conspire to violate” RICO's criminal prohibitions. 529 U.S. at 500. Section 1964(c) states that a RICO claim is available to anyone “injured . . . by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). The petitioner in Beck sought to bring a RICO claim against his former employers. He alleged that his employment had been terminated after he discovered the respondents' racketeering activity and that the termination had been “done in furtherance of respondents' conspiracy, ” and had caused injury to him. Id. at 499. The Court considered “whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under § 1964(c) for a violation of § 1962(d) even if the overt act does not constitute ‘racketeering activity.'” 529 U.S. at 500. The Court answered this question in the negative, holding that “injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d).” Id. at 505 (citation omitted).

         Although their argument is far from clear, Defendants appear to assert that Beck somehow limits Plaintiffs to discovery regarding the predicate acts. [See Docket No. 222 at 4-5.] This is a distortion of Beck, which addresses the issue of who has standing to assert a civil RICO conspiracy claim. Beck does not discuss the scope of discovery, and cannot be read to limit discovery related to an alleged RICO conspiracy to the racketeering acts underlying that claim.

         The court finds that the two categories of documents at issue-communications between Defendants and donors, and communications regarding the publication of the videos-satisfy the Rule 26 standard of “relevan[ce] to any party's claim or defense.” See Fed. R. Civ. P. 26(b)(1).[8]Specifically, as to communications between Defendants and donors regarding the investigation of Planned Parenthood that led to the release of videos (RFP No. 3), the Human Capital Project (RFP No. 49), and the planning for the undercover investigation of Planned Parenthood (RFP No. 15), such communications may show how Defendants planned and intended to carry out the alleged enterprise, including Defendants' planned commission of the predicate acts of production and transfer of fake IDs. They are therefore relevant to establishing the purpose and existence of the alleged enterprise, the relationships among those associated with the enterprise, and the relatedness of the predicate acts, as well as any agreement to violate RICO. Such communications are also relevant to identifying the individual defendants' roles in the alleged enterprise and each defendant's awareness of the nature and scope of the enterprise. They may also identify potential co-conspirators and possible additional defendants.

         As to communications regarding the publication of the videos, Plaintiffs clarify that this category seeks “communications with publication outlets, communications among Defendants or others involved in the scheme about publishing the videos, and communications about shaping the videos.” [Docket No. 222 at 3.] Plaintiffs have alleged a specific RICO enterprise and conspiracy to violate RICO, the purpose of which was to disrupt Planned Parenthood's provision of reproductive health care, including abortions, by means of the release of misleading videos. Communications between the Defendants, publication outlets, and others may include discussions about the means by which Defendants sought to carry out the alleged enterprise, as well as the goals of the enterprise and their efforts to significantly impact Plaintiffs through publication of the videos. Such documents are relevant to the purpose and existence of the alleged enterprise, as well as the relationship between the alleged members of the enterprise and causation.

         The communications are also relevant to causation, which Defendants have placed at issue in this case. In their motion to dismiss, Defendants argued that the predicate acts “did not directly cause the harms plaintiffs complain of, ” including “disrupted and delayed services, expending additional resources on physical and cyber security, increase in threats, harassment, and vandalism, loss of vendors, and time and expense in responding to legislative inquiries.” [Docket No. 124 at 13.] Instead, Defendants asserted, “the harms suffered by plaintiffs were caused by a complex causal chain of events resulting in the acts of third-parties and legislative bodies beyond the control of defendants.” Id. Judge Orrick rejected Defendants' argument, and found that Plaintiffs had adequately alleged proximate cause. In so doing, he specifically noted that “[h]ow far the actual causal link stretches for each category of damages plaintiffs allege is something that will need to be developed in discovery and tested on summary judgment.” Id. at 16-17. For example, the requested discovery may reveal connections or relationships between Defendants and those responsible for causing Plaintiffs' alleged damages. Plaintiffs are entitled to test Defendants' claim that their damages were exclusively caused by third parties who were beyond Defendants' control. As a further example, Defendant Rhomberg states that he “communicated with others within [CMP], [CMP's] consultants, donors, and others about journalistic strategy and especially maximum public impact from publishing” the videos. [Docket No. 242-2 (Rhomberg Decl., Feb. 28, 2018) ¶ 4.] The requested communications are therefore relevant to the issue of the “maximum public impact” Defendants intended and the steps they took to that end. This is directly relevant to the issue of causation, an issue which the presiding judge has directed the parties to “develop[] in discovery.”

         2. First Amendment Privilege

         Defendants also object to producing communications with donors based on the First Amendment. [Docket No. 222 at 5.] Defendants argue that the disclosure of these communications will reveal the identities of their donors and supporters, which implicates those individuals' First Amendment rights, including the right to associational privacy, the right to free speech, and the right to petition the government. [Docket No. 242 at 1, 3.]

         In Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984), the Supreme Court observed that “[a]n individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Therefore, the Court stated, it has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Id.; see also Buckley v. Valeo, 424 U.S. 1, 15 (1976) (“[t]he First Amendment protects political association as well as political expression”). “Association for the purpose of engaging in protected activity is itself protected by the First Amendment, ” Santopietro v. Howell, 857 F.3d 980, 989 (9th Cir. 2017), and the “First Amendment right to associate for the purpose of speaking . . . [is] termed a ‘right of expressive association.'” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 68 (2006) (citation omitted).

         In Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010), amending and denying reh'g en banc of 591 F.3d 1126 (9th Cir. 2009), the Ninth Circuit held that “[a] party who objects to a discovery request as an infringement of the party's First Amendment rights is in essence asserting a First Amendment privilege.” (emphasis in original) (citation omitted). An assertion of that privilege in response to discovery is subject to a two-part framework. Id. First, “[t]he party asserting the privilege ‘must demonstrate . . . a prima facie showing of arguable first amendment infringement, '” demonstrating that enforcement of the discovery requests “will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or ‘chilling' of, the members' associational rights.” Id. (quotations omitted). If the party asserting the privilege makes the necessary prima facie showing, the burden shifts to the party seeking the information to show that the information sought is “rationally related to a compelling governmental interest” and that there are no other less restrictive means of securing that information. Id. at 1161. “[T]he party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation-a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable.” Id. “[T]he second step of the analysis is meant to make discovery that impacts First Amendment associational rights available only after careful consideration of the need for such discovery, but not necessarily to preclude it.” Id.

         In their earlier submissions, Defendants failed to address the standards applicable to the First Amendment privilege, and only asserted that Plaintiffs' requests are not carefully tailored. [Docket Nos. 166, 222 at 5.] In supplemental briefing, Defendants submitted declarations from Defendants Daleiden and Rhomberg, as well as pseudonymous declarants John Doe and Jane Roe, who are all individuals associated with CMP. Defendants assert that these declarations establish a prima facie case that producing the requested discovery will have a chilling effect on the donors' exercise of protected activities.[9] [Docket No. 242 at 3.]

         Daleiden describes CMP and the Human Capital Project. He states that CMP was “formed for the purpose of monitoring and reporting on medical ethics and advances with a particular concern for contemporary bioethical issues that impact human dignity, ” and “carries out its work by means of investigative journalism.” [Docket No. 242-1 (Daleiden Decl., Feb. 27, 2018) ¶ 2.] According to Daleiden, “[t]he Human Capital Project focused on documenting illegal and unethical fetal tissue procurement practices in the abortion industry, with a special emphasis on the Planned Parenthood organization.” Id. at ¶ 4. He states that CMP “developed significant ties with the pro-life community nationwide, ” and that “[m]any donors . . . specifically donated funds to CMP for use with respect to the Human Capital Project because they are members of the pro-life community who are interested in seeing unethical and illegal conduct in the abortion industry brought to light.” Id. at ¶ 6.

         Rhomberg, a member of CMP's board of directors, describes his communications with CMP's donors and supporters. He states that at the time he joined CMP, he understood that “CMP was going to engage in a project which would be an investigative journalism study” regarding Planned Parenthood's practices. Rhomberg Decl. ¶¶ 1, 2. While the study was ongoing, he “communicated with supporters, donors, and/or volunteers of CMP about [his] deeply held moral and political views, including on abortion.” Id. at ¶ 4. He also “communicated with others within the organization, the organization's consultants, donors, and others about journalistic strategy, ” and the impact on the public of publishing videos “from CMP's investigative journalism efforts.” Id.

         John Doe states that he contributed money to CMP in 2013, intending that his funds would “be used in an investigation of illegal fetal tissue procurement and abortion practices.” [Docket No. 242-4 (Doe Decl., Feb. 28, 2018) ¶ 2.] Doe describes himself as pro-life and states that he “would not have contributed to CMP if [he] had known that Planned Parenthood or other pro-abortion groups would learn [his] identity or [his] private communications with CMP.” He asserts that he fears reprisals, including harm to his business, if his identity is disclosed. Id. at ¶¶ 2, 3. He further states that his communications with CMP about the investigation into Planned Parenthood reveal his and others' “deeply held political and religious views, ” and that if CMP is required to turn over its communications with him, he would change what he says, who he speaks to, and who he associates with in the future. Doe Decl. ¶¶ 6, 7.

         Jane Roe began supporting CMP after it released its first videos in 2015. [Docket No. 242- 3 (Roe Decl., Feb. 27, 2018) ¶ 2.] She states that since this lawsuit was filed, she has been “wary of assisting CMP in potential future investigations, ” and that “[i]f the broad discovery demanded in this case is permitted, [she] will have to consider changing the way [she] communicate[s] with CMP to avoid having [her] ...


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