SAN FRANCISCO (CN) – Anti-abortion activist David Daleiden and his attorneys must pay $136,800 for publishing banned videos of the National Abortion Federation’s annual meetings, a federal judge ruled Monday.
U.S. District Judge William Orrick III sanctioned Daleiden, his group the Center for Medical Progress, and his criminal defense lawyers for disclosing videos barred by a preliminary injunction. The judge found each of them jointly liable to pay security and litigation costs the federation incurred due to the leak of banned recordings.
At a July 11 hearing, Orrick said he would hold Daleiden’s criminal defense lawyers, Steve Cooley and Brentford Ferreira, in contempt, but he hadn’t yet ruled on sanctions against Daleiden.
In a 24-page ruling issued Monday, Orrick found Daleiden’s “deafening silence” and refusal to answer questions on the basis of attorney-client privilege amounted to a failure to rebut evidence that he and his group violated the court’s order.
The federation accused Daleiden of creating a three-minute “preview” video that identified abortion providers’ names, called them “evil,” “a baby killer” and “a systematic murderer,” and asked viewers to “share” the video to “hold Planned Parenthood accountable for their illegal sale of baby parts.” Orrick agreed.
“The conclusion I draw from the direct and circumstantial evidence, from Daleiden’s admitted role with CMP, and from his failure to rebut NAF’s allegations, is that Daleiden was the one who created the preview video and accusers playlist, uploaded them onto CMP’s YouTube channel, and forwarded those links to his criminal counsel for their use on his behalf,” Orrick wrote.
Orrick granted the injunction barring disclosure of the videos in February 2016, finding the safety and privacy of the federation’s members outweighed the center’s First Amendment right to disclose recordings they obtained by posing as a fake biomedical firm to infiltrate meetings. Orrick also found the videos he reviewed contained no evidence that abortion providers agreed to illegally sell fetal tissue for profit, as alleged, despite a targeted effort to elicit such responses.
Daleiden’s attorney, Paul Jonna, argued last week that the posting of those videos did not violate the court’s order because the files were uploaded to a private YouTube account and not made publicly available without a link.
Orrick rejected that argument, noting that the enjoined materials were still shared with a third-party, YouTube, in violation of his order.
“The only reasonable conclusion to draw from uploading materials to YouTube is that they were uploaded for the purpose of facilitating the publishing and distribution of those videos, which is what in fact occurred,” Orrick wrote.
Daleiden’s attorneys said they needed to share links to those videos on their website and in a public court filing to mount a “vigorous criminal defense” against 15 felony charges Daleiden faces in state court for conspiracy and invasion of privacy.
But Orrick said the lawyers failed to explain why they needed to publish links to those recordings when the state court judge presiding over the case already had a thumb drive containing the same video files.
Orrick also found the attorneys failed to justify why they included a link to recordings from the federation’s annual meeting in Baltimore, which has nothing to do with the criminal case in California.
“Absent explanation from Cooley and Ferreira, the only conclusion I can draw from the uncontroverted facts is that Cooley and Ferreira’s use of the defense filing link was a wholly gratuitous effort to give Cooley and Ferreira a fig leaf to cover their plan to violate the [preliminary injunction] by making the raw footage and the other videos available to the public,” Orrick wrote.
The federation says it had to spend nearly $13,000 in security costs to protect its members, $26,000 in staff time to monitor and respond to threats, $1,280 on a consultant, and $96,600 in attorneys’ fees to take down videos from websites and hold the defendants in contempt.
Orrick ordered the federation to submit a breakdown of the $26,000 it spent diverting in-house staff to respond to the disclosed videos by July 28, and for the defendants to file any objections to those figures by Aug. 4.
The judge also ordered Daleiden and the center to turn over all videos of the federation’s meetings to attorneys representing him in the civil lawsuit. Orrick said Daleiden may review the videos for defense purposes as long they remain in the care and custody of his lawyers.
In a statement issued Monday, the federation’s CEO Vicki Saporta said the organization is pleased that Daleiden and his “co-conspirators” will be held accountable for the “egregious and disturbing” violation of the preliminary injunction.
“Daleiden has no regard for the law and has proven that he cannot be trusted with the videos and other materials he stole from our meetings,” Saporta said. “It’s critical to the safety and security of our members that the judge take these protected materials away from Daleiden and hold him and his attorneys accountable for their blatant violations of our preliminary injunction.”
Also on Monday, an attorney representing Daleiden’s co-defendant Sandra Merritt in the criminal case in San Francisco asked a judge to dismiss 14 charges against her because the state’s deputy attorney general only filed an amended complaint in Daleiden’s case docket, but not hers.
A deputy attorney general asked Superior Court Judge Christopher Hite for permission to correct the error, but attorney Horatio Mihet said state law requires that criminal charges be thrown out if prosecutors fail to file an amended complaint within 10 days after charges are dismissed.
Hite dismissed 14 charges of invasion of privacy against Daleiden and Merritt with leave to amend on June 21.
Daleiden declined to enter a plea on Monday, and his attorneys said they would file a new demurer challenging the state’s amended criminal complaint.
A hearing on the motion to dismiss charges against Merritt is scheduled for Aug. 24.
Daleiden’s attorney Charles LiMandri and Cooley and Ferreira’s attorney, Matthew Geragos, did not immediately return phone calls seeking comment Monday afternoon.
LiMandri is based in Rancho Santa Fe, California. Geragos is in Los Angeles.