United States District Court, N.D. California
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs,
CENTER FOR MEDICAL PROGRESS, et al., Defendants.
ORDER ON PRETRIAL MOTIONS RE: DKT. NOS. 740, 754,
758, 761, 762, 764, 789
H. ORRICK UNITED STATES DISTRICT JUDGE
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.
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.
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
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. 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.
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.
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
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.
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.
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.
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.
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.
PRETRIAL STATEMENT DISPUTED LEGAL ISSUES
Scope of Conspiracy Claim
civil conspiracy claim may proceed to trial based on the
underlying tort claims, including fraud, trespass, and
Scope of Fraud Claim
fraud claim may proceed to trial based upon affirmative
misrepresentations, omissions, and promissory
PPGC NDA Breach
may base their PPGC NDA breach upon the act of recording
UCL claim and Injunctive Relief
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.
PLAINTIFFS' MOTIONS IN LIMINE
Re Expert Paul Zimmer's Prior Accounting Firm
The Opinions of Brian Prendergast
addressed more fully below with respect to plaintiffs'
motion to exclude.
The Expert Opinion and Percipient Testimony of Theresa
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.
Evidence of Accounting of Costs and Reimbursements
for the reasons discussed above.
Evidence Regarding Abortion Method, Procedure and
for the reasons discussed above, except that Daleiden and
Merritt may testify to their reasonable beliefs under their
633.5 defense as outlined above.
Evidence Regarding Legislative, Investigatory, and Regulatory
for the reasons discussed above.
Evidence Relating to Tissue Procurement
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.
Evidence Relating to Non-Party Abortion Providers
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
Evidence of or Reference to Defendants as Journalists and