United States District Court, N.D. California
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs,
CENTER FOR MEDICAL PROGRESS, et al., Defendants.
FINAL ORDER ON ADVERSE INFERENCES
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
Any inference you may draw should be based upon all of the
facts and circumstances in this case as you may find them
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 ...