9th Cir. Denies Abortion Foe’s Bid to Halt Case Over Videos

SAN FRANCISCO (CN) – The Ninth Circuit Court of Appeals on Wednesday denied an anti-abortion group’s petition to stay discovery in a lawsuit over secretly recorded videos.
The National Abortion Federation sued the Center for Medical Progress in July, accusing the group of falsely posing as a biomedical company to gain access to its meetings and secretly film discussions about the sale of fetal tissue.
U.S. District Judge William Orrick issued a temporary restraining order to block CMP from releasing the videos on July 31, hours after NAF sued the group of self-described “citizen journalists” for fraud, conspiracy, privacy invasion and breach of signed confidentiality agreements.
Last week, the Ninth Circuit halted further action in the NAF case by partly granting CMP’s emergency motion to stay discovery while the appeals court reviewed CMP’s writ of mandamus.
The 32-page mandamus petition, filed Sept. 14, urged the appeals court to order Orrick to stay all discovery in the lawsuit until a ruling comes down on its motion to strike or dismiss NAF’s complaint. CMP also asked that Orrick be ordered to rule on a pending motion for preliminary injunction without conducting discovery.
Orrick submitted a response to CMP’s petition on Sept. 18, arguing that a review of discovery materials is necessary to determine whether the public importance of information CMP obtained outweighs NAF’s privacy interests or enforcement of the signed confidentiality agreement.
By signing the agreement, CMP agreed to waive its First Amendment rights to publish the information and to be bound by injunctive relief, Orrick wrote.
In its Sept. 23 ruling, a Ninth Circuit panel agreed with Orrick’s reasoning that discovery is needed to resolve whether the information CMP obtained was covered under the confidentiality agreement.
The panel rejected CMP’s argument that filing an anti-SLAPP motion automatically stays discovery in the lawsuit, finding that the federal rules of civil procedure supersede that state provision.
“Obtaining that information takes precedence over any state-law discovery rule, especially here where, as the district court put it, the anti-SLAPP motion is “riddled with factual determinations that must be resolved,'” the panel wrote.
The panel cited a California Supreme Court ruling that held parties can waive protections of the state’s anti-SLAPP statute. NAF claims CMP waived its right to anti-SLAPP protections when it signed the confidentiality agreement.
“Discovery may well thus be necessary for the federation’s defense to the anti-SLAPP motion for the same reason that it is necessary to the district court’s ability to rule on the preliminary injunction,” the panel wrote.

A House of Representatives Subpoena
Orrick’s restraining order continues to block CMP from releasing videos it secretly recorded, even as the U.S. House of Representatives seeks footage the group obtained.
So CMP sent a letter to the House on Tuesday saying that although it wants to fully comply with its subpoena, a restraining order prevents it from doing so.
“CMP intends to comply with the subpoena, to ensure that the Committee on Oversight and Government Reform has the information it needs to further its investigation into the trafficking by Planned Parenthood and others in the body parts of aborted babies, along with other related crimes,” CMP’s attorney, Peter Breen, wrote in a Sept. 22 letter.
The House committee issued the subpoena to CMP executive director David Daleiden on Sept. 15, requesting all unedited video footage, documents and communications relating to the acquisition, preparation and sale of fetal tissue.
Arizona’s attorney general has also issued a subpoena seeking video footage and information CMP obtained through the deception, which CMP describes as an act of investigative journalism.
Over the last three months, CMP has released six videos of Planned Parenthood officials and employees working for the biomedical research company StemExpress discussing the sale of aborted fetal tissue.
The videos ignited renewed national debate over abortion issues, leading to failed attempts by some U.S. lawmakers to defund Planned Parenthood in August and September. This month the House approved a bill that would ban abortions after 20 weeks of pregnancy, but the U.S. Senate blocked the legislation on Tuesday.
Some Republican lawmakers have suggested they will not vote in favor of any federal spending bills that include funds for Planned Parenthood, an issue that could lead to a partial government shutdown at the end of September.
Last week, Orrick ordered CMP to meet and confer with NAF to disclose any materials it plans to release to the Arizona attorney general within 10 days of the Ninth Circuit’s ruling on its writ of mandamus.
Orrick also ruled NAF should have 10 days to review any materials before CMP discloses them so it can negotiate with Attorney General’s Office or challenge the subpoena in an Arizona court.

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