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

United States District Court, N.D. California

November 5, 2019

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

          FINAL ORDER ON ADVERSE INFERENCES

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE.

         Having considered the full record before me, including the testimony to date and the documentary evidence admitted and the arguments of counsel on November 5, 2019, I conclude that plaintiffs have made the required substantial need showing required under Doe v. Glanzer and other Ninth Circuit precedent to justify giving the jury a list of specific adverse inferences that they may, but are not required to make, with respect to defendant Newman and third-parties Baxter and Davin.

         The inferences, identified below, are supported by the questions asked by plaintiffs in the depositions that Newman, Baxter, and Davin refused to answer under the Fifth Amendment. The inferences go to core, disputed issues regarding the defendants' intent, knowledge, and conduct in this case relevant to the claims arising under federal and the laws of Texas, Colorado, Florida, Maryland, and the District of Columbia, but not relevant to the claims arising solely under California law. Other evidence in this case, including admitted documentary evidence, support the existence of the facts that plaintiffs seek to establish through the inferences. Because of the nature of inferences, generally going to the defendants' intent and knowledge, the inferences cannot be otherwise adequately established through less burdensome means. There is no unfair prejudice to Newman, Baxter, Davin, or any of the testifying defendants from allowing the inferences identified below.

         In addition, certain exhibits are admissible. Those exhibits are 22, 26, 28, 30, 39, 47 [redacting reference to Jay Sekulow]. Ex. 20 is not admissible as 403, but the inference is allowed. I will allow plaintiffs to display the admissible exhibits as they choose as relevant to the permissible adverse inferences. Further, there are pleadings that have established certain facts; the plaintiffs may recite them as they choose as relevant to the adverse inferences. Plaintiffs may also use admissions from Newman as identified in Dkt. No. 841, pgs. 4:22-5:15. Plaintiffs may not use any offered stipulations other than those related to authenticity (Dkt. No. 841, pgs. 5:18-6:11), unless plaintiffs identify them to the Court by 7:30 a.m. November 6, 2019. Given Newman's failure to testify, defendants may not use or reference any of the stipulated facts or admissions of Newman other than those used by plaintiffs.

         Finally, prior to reading the adverse inferences, I intend to instruct the jury as follows:

The Fifth Amendment of the United States Constitutional affords every person the right to decline to answer questions if he or she believes that the answers may tend to incriminate them. However, in civil cases, you are permitted, but not required, to draw the inference that the withheld information would have been unfavorable to the defendant.
In this case, defendant Troy Newman exercised his right under the Fifth Amendment not to incriminate himself and did not answer any substantive questions asked by plaintiffs during his deposition. Accordingly, he will not testify in this trial. For claims based on California law, you may not consider that, or speculate about why, Newman invoked the Fifth Amendment and refused to answer. For claims based on federal law, and the laws of Florida, Maryland, and the District of Columbia, you may make an adverse inference from the fact Newman invoked the Fifth Amendment and refused to answer questions.
Any inference you may draw should be based upon all of the facts and circumstances in this case as you may find them

         The adverse inferences as to Troy Newman are as follows:

NEWMAN 1. Troy Newman co-authored the book “Their Blood Cries Out, ” which reflects his beliefs that “...the United States government has abrogated its responsibility to deal properly with the blood-guilty” and that “This responsibility rightly involves executing convicted murderers, including abortionists, for their crimes in order to expunge bloodguilt from the land and people.”
NEWMAN 2. Troy Newman and his organization Operation Rescue operate the website “AbortionDocs.org, ” which publicizes the names, photographs and business addresses of abortion providers, including Dr. Deborah Nucatola and Dr. Mary Gatter.
NEWMAN 3. Troy Newman understood that one of CMP's goals was to end abortion, and to defund and shut down Planned Parenthood.
NEWMAN 5. Troy Newman understood that CMP's plan was to conduct creative, scenario-based “gotcha” stings, that would include undercover videos of Planned Parenthood abortion providers.
NEWMAN 6. Troy Newman suggested to David Daleiden that they communicate through an anonymous e-mail address that only they would know about in order to hide their communications ...

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