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

United States District Court, N.D. California

September 12, 2019


          ORDER ON PRETRIAL MOTIONS RE: DKT. NOS. 740, 754, 758, 761, 762, 764, 789


         On September 9, 2019, I heard argument on the parties' motions in limine, motions to exclude, and disputed legal issues. A few overarching issues will be addressed first, to provide necessary context and explanation for the specific rulings laid out below.

         Journalism vs. a Smear Campaign. These are the dueling narratives of this case. Defendants argue that they were involved in traditional under-cover journalism in order to expose violations of the law by Planned Parenthood with respect to PPFA and its affiliates' fetal tissue transfer programs. Plaintiffs argue that the goal of defendants' Human Capital Project (HCP) was to smear plaintiffs with allegations they profited from the fetal tissue transfer programs in order to drive PPFA and its affiliates out of business. These narratives are not directly and significantly relevant to the remaining claims and defenses in this case that are to be decided by the jury. However, they are central to the context of and the background to this case. Therefore, defendants are entitled to characterize their conduct as a journalistic enterprise and plaintiffs are entitled to attack that in part by exploring defendants' past conduct and writings regarding abortion.

         Illegal Conduct. The causes of action in this case concern whether the strategies chosen by the defendants with respect to the Human Capital Project broke the law and caused damage outside the First Amendment context. There are raging debates whether the videos show illegal conduct, whether 4 of 59 Planned Parenthood affiliates profited from selling fetal tissue, whether there have been any live births during abortion procedures at Planned Parenthood affiliates, and how government entities have responded to the HCP disclosures. Those debates are barely, if at all, relevant to the causes of action that will be tried to the jury. Evidence on those issues will be excluded under Federal Rule of Evidence 403 because it will confuse the jury about the issues it needs to decide, waste a significant amount of trial time, and be prejudicial.

         The defense argues that illegality by plaintiffs in their fetal tissue programs is critically related to their intent (under the federal wiretapping claim), to the reasonable expectations of privacy in recorded conversations, to the newsworthiness of defendants' publications, and to the social utility of defendants' conduct. Plaintiffs have dropped their invasion of privacy claims and publication of private facts hook for the federal wiretapping claim, so newsworthiness and social utility are no longer relevant to the claims and defenses to be decided by the jury.[1] Similarly, while defendants' intent to violate RICO remains an element of the federal wiretapping claim, that intent must be established based on evidence defendants knew at the time of the inception of the HCP and prior to the first surreptitious recording. Defendants can present evidence of what they knew, what they believed, and how they carried out their journalistic endeavors through the HCP (the defense narrative discussed above) consistent with their intent. What defendants uncovered through the surreptitious recordings or through discovery in this case, and any expert opinion on that evidence, is not relevant.

         Because the California Penal Code section 633.5 “reasonable belief” defense is an issue that will be decided by the jury - as relevant only to plaintiffs' Penal Code section 632 and 634 illegal recording and trespass claims - defendants Daleiden and Merritt may present evidence of what they knew or believed regarding plaintiffs' commission of violent felonies. That knowledge or belief must be based on what Daleiden or Merritt knew prior to their first surreptitious recording. Evidence regarding what Daleiden or Merritt learned following their first surreptitious recording cannot be relied on for this defense.

         Evidence of possibly illegal conduct does not get into this case through the issue of reasonable expectation of privacy under the recording claims. Defendants argue that precluding this evidence will:

hamstring Defendants' ability to argue that the individuals they recorded lacked any expectation of privacy as understood by the federal, Florida, and Maryland recording statutes. Defendants' experts will need to explain how certain medical procedures work in order to explain how the individuals recorded knew they were discussing wrongful conduct. See Brugmann v. State, 117 So.3d 39, 49 (Fla. Dist. Ct. App. 2013) (identifying eight-factor test for determining reasonableness of expectation of privacy, including illegal conduct, intent, and content of communication, upon collecting cases).

Dkt. No. 772 at 11. But they fail, as they did on summary judgment, to specifically identify any much less each of the particular and actionable recordings that show plaintiffs' staff members discussing illegal conduct. To the extent that one or two of the actionable recordings might show plaintiffs' staff members expressing interest or theoretical ability to engage in conduct that defendants contend is illegal (but plaintiffs contend is not), the evidence and opinions defendants seek to bring in (mostly through their proposed experts as discussed in more depth below) is vastly outweighed by the Rule 403 considerations identified above.

         Finally, the accounting issues regarding the fetal tissue programs of the four affiliate-plaintiffs is not directly and significantly relevant to the remaining claims and defenses in this case. Delving into these contested but minimally relevant issues, such as the proper interpretation of 42 U.S.C. § 289g-2 and whether indirect costs can be considered in evaluating compliance with the statute, is significantly outweighed by a number of Rule 403 factors, including juror confusion and waste of time.

         In short, compliance with or alleged violation of federal laws (including but not limited to 42 U.S.C. § 289g-2 and the Partial Birth Abortion Ban) and whether babies were born alive at Planned Parenthood clinics to facilitate the affiliates' participation in fetal tissue donation programs will be excluded under Rule 403. I will draft a limiting instruction, to be provided for counsel's review prior to the final Pretrial Conference on September 23, 2019, explaining that the truth of the allegations made in the HCP videos regarding whether plaintiffs profited from the sale of fetal tissue or otherwise violated the law in securing tissue for those programs are not matters for the jury to decide.

         Newsworthiness. The newsworthiness of defendants' HCP, including the campaign and the videos, is no longer an issue for determination by the jury given that plaintiffs have dropped their invasion of privacy claims (Counts 13 and 14) and dropped the “publication of private facts” tort as a basis for liability under the federal wiretapping claim (Count 2). That does not preclude defendants from offering evidence that they believed at the commencement of the HCP that it would result in newsworthy information, or that in fact it generated attention in the media. However, the stories themselves will not be admissible under Rule 403.

         Government Investigations, Referrals, and Prosecutions. No. evidence regarding government investigations, referrals, or prosecutions stemming from the HCP or otherwise will be admitted. Under Rule 403, the minimal relevance of this evidence to each side's narrative about this case is significantly outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, and waste of time.


         A. Scope of Conspiracy Claim

         The civil conspiracy claim may proceed to trial based on the underlying tort claims, including fraud, trespass, and illegal recording.

         B. Scope of Fraud Claim

         Plaintiffs' fraud claim may proceed to trial based upon affirmative misrepresentations, omissions, and promissory fraud/fraudulent inducement.

         C. PPGC NDA Breach

         Plaintiffs may base their PPGC NDA breach upon the act of recording itself.

         D. UCL claim and Injunctive Relief

         No jury instructions will be given, or are necessary, on the UCL claim. No. evidence related solely to the UCL claim should be presented at trial. If necessary following the jury trial, starting on December 2, 2019, a bench trial will be held to determine whether the UCL has been violated and what, if any, injunctive relief is appropriate.


         1. Re Expert Paul Zimmer's Prior Accounting Firm

         GRANTED, as agreed.

         2. The Opinions of Brian Prendergast

         DENIED, addressed more fully below with respect to plaintiffs' motion to exclude.

         3. The Expert Opinion and Percipient Testimony of Theresa Deisher

         GRANTED, on lack of relevance and under Rule 403. Defendant Daleiden may testify as to the bases for his reasonable belief in support of his Section 633.5 defense, given information he knew and believed prior to the first, surreptitious recording. If Daleiden had contact with Deisher prior to that date, he may testify as to his reliance on what he learned from Deisher to support his defense.

         4. Evidence of Accounting of Costs and Reimbursements

         GRANTED, for the reasons discussed above.

         5. Evidence Regarding Abortion Method, Procedure and Technique

         GRANTED, for the reasons discussed above, except that Daleiden and Merritt may testify to their reasonable beliefs under their 633.5 defense as outlined above.

         6. Evidence Regarding Legislative, Investigatory, and Regulatory Bodies

         GRANTED, for the reasons discussed above.

         7. Evidence Relating to Tissue Procurement Organizations

         GRANTED. Evidence regarding investigations into TPOs and settlements by any TPOs are excluded by No. 6 and the discussion above. With respect to allegations by O'Donnell, she is deceased, and her testimony suffers from a number of evidentiary problems. However, if a foundation is laid that that Daleiden had a conversation with her prior to his first surreptitious recording for the HCP, he may testify that he spoke with O'Donnell and that the conversation supported his reasonable belief arguments. Beyond that, testimony about her opinions is excluded under Rule 403 because plaintiffs had no opportunity to cross-examine her and her purported beliefs are hotly disputed and highly prejudicial.

         8. Evidence Relating to Non-Party Abortion Providers

         GRANTED, except to the limited extent that Daleiden or Merritt may testify to their understanding of actions of non-party abortion providers to support their reasonable belief defense. This limited exception, however, does not apply to any evidence about or regarding Kermit Gosnell. No. reference or inference may be made to Gosnell in this case under Rule 403.

         9. Evidence of or Reference to Defendants as Journalists and ...

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