SAN FRANCISCO (CN) – A federal judge in San Francisco refused Wednesday to drop anti-abortion activist Albin Rhomberg from Planned Parenthood’s lawsuit over videos doctored to make it seem as though the health care provider sells aborted fetal tissue, saying it was too early to decide the case.
But U.S. District Judge William Orrick III said Rhomberg and his fellow activists at the anti-abortion Center for Medical Progress might win once all the evidence is in.
“My fundamental problem…is that plaintiffs haven’t had the opportunity yet to review all the documents and take depositions of people,” Orrick said in a San Francisco hearing. “[U]ntil discovery is done, I don’t know precisely what the defendants did so that I can analyze whether there is in fact a direct relationship or not.”
The “direct relationship” to which Orrick referred is the relationship between Rhomberg’s and his co-defendants’ 2014 infiltration of abortion conferences around the United States and the resulting damage to Planned Parenthood.
Rhomberg, David Daleiden and others connected with the Center for Medical Progress (CMP) in 2014 posed as employees of a fictional fetal-tissue procurement company to gain access to the conferences and secretly filmed themselves attempting to buy fetal tissue from Planned Parenthood staff.
The resulting footage was heavily edited to suggest Planned Parenthood illicitly sells fetal tissue and posted online. Violence at its clinics spiked in response, and GOP lawmakers threatened to pull its funding.
Planned Parenthood sued CMP and its activists on racketeering, conspiracy and invasion of privacy claims in January 2016, contending the fraudulent videos cost it millions of dollars in beefed-up security to address the violence, including a November 2015 incident in which a gunman killed three people at its clinic in Colorado Springs.
Orrick refused to dismiss the lawsuit. But he said in an October 2016 order that Planned Parenthood may not be able to recover for damages caused by the “intervening actions of third parties” like the Colorado Springs gunman, because federal racketeering laws impose liability only if a defendant’s conduct directly caused a plaintiff’s alleged injuries.
Returning to this decision Wednesday, Catherine Short, Rhomberg’s attorney with Life Legal Defense Foundation, expressed doubt over whether Rhomberg’s infiltration activities – specifically, the creation and use of fake IDs to get into the conferences – directly caused Planned Parenthood’s Racketeer Influenced and Corrupt Organizations Act (RICO) damages.
“With regard to the RICO claim, predicate acts – the production of fake IDs – we just have a hard time understanding what possible facts they could hope to elicit to show a direct connection between the production of fake IDs and any damages to [a Planned Parenthood affiliate] who had no infiltration,” she told Orrick.
“Can you give us some idea of what you think might come out of this evidence? What would it be that would turn the production of fake IDs that could support a RICO claim for any of those plaintiffs who did not suffer direct infiltration?” she asked him, referring to Planned Parenthood’s local affiliates.
Orrick said he wanted to see what the relationship between the defendants and third parties was like, “and how directly that tethered to actions plaintiffs took to protect” themselves.
“I think your arguments may very well have force at the end of the day,” he added.
“If the things you laid out in your briefing turn out to be the only links, then there may be some real problems with the damages plaintiffs asserted and maybe with some of the plaintiffs themselves,” he said. “But until I have a complete record, I’m not in a position to make that call.”
Orrick’s surprise admission Wednesday is the latest in a string of positive developments for Daleiden, who as CMP’s chief executive renewed a push last year for access to financial records concerning university-run fetal tissue procurement programs.
Last month, the Ninth Circuit signaled it will lift a 2016 court order blocking Daleiden’s access to financial records held by the University of Washington’s Birth Defects Research Laboratory, which distributes fetal tissue obtained via abortion to academic and nonprofit research facilities around the United States.
U.S. District Judge James Robart in Seattle had barred the University of Washington from releasing the documents without first redacting researchers’ personally identifying information, reasoning that revealing the researchers’ identities would hamper medical research due to the politicized nature of abortion in the United States.
According to a joint discovery letter brief filed in the San Francisco case Monday, Daleiden in October initiated a second round of requests for fetal tissue records, this time from five University of California campuses. The schools include the University of California at San Francisco (UCSF), one of the top medical research universities in the United States.
The brief indicates Daleiden has lodged similar complaints over UC’s privacy redactions to the ones made in the Seattle case. But the schools say they don’t trust him with their employees’ personal information, potentially laying the ground for a second appeal.
“Defendants have a proven record of misusing information and the Regents can provide the court with the evidentiary record on which it bases its well-founded concerns for the safety, security, privacy, and First Amendment rights of its employees,” the UC campuses wrote.
Daleiden made the sprawling records request shortly before the National Institutes of Health told UCSF in a December 2018 letter it might cancel the university’s $2 million contract for research involving fetal tissue.
The New York Times reported the letter was part of Trump administration efforts to curtail the use of fetal tissue in medical research in favor of less controversial alternatives. Fetal tissue is used to study diseases like cancer and AIDS, and to test drugs and vaccines, and researchers say no feasible alternative exists.
According to Planned Parenthood, Daleiden also recently subpoenaed California Bank & Trust in Sacramento federal court for seven years of bank records and financial statements from two Planned Parenthood affiliates.
Planned Parenthood attorney Amy Bomse, of Arnold & Porter Kaye Scholer in San Francisco, moved last Friday to quash the subpoena, writing in a brief that the subpoena “improperly seeks documents from a non-party without first requesting such discovery from a party to the CMP Lawsuit (and therefore allowing this discovery dispute to be heard at the same time as the pending motions), and the documents impinge on PPPSW and the Action Fund’s privacy interests.”
Asked Wednesday about Daleiden’s unorthodox push for records, Bomse said she couldn’t comment.
In an email late Wednesday, Daleiden’s lawyer Charles LiMandri said the Sacramento subpoena was not intended as an end-run around U.S. Magistrate Judge Donna Ryu, the Oakland judge handling discovery in the case. Last July, Ryu signaled she would likely deny Daleiden’s demand for the Planned Parenthood affiliates’ financial information as irrelevant.
Daleiden had asked Ryu to order the affiliates to produce information about the costs of their fetal tissue donation programs, saying it would show they profit from the programs by taking in more money than they spend facilitating donations. Ryu has yet to rule.
“[W]e have filed the motion to compel compliance with the third party subpoena, served on California Bank, in the court district where the documents are to be produced,” said LiMandri, of the Freedom of Conscience Defense Fund in Rancho Santa Fe, California. “It is my further understanding that the court rules require that the motion be pled in that venue for the convenience of the bank, since it is not a party to the action Planned Parenthood filed in San Francisco. Therefore, the place where the motion to compel was filed was certainly not an unorthodox strategy intended to avoid the court where the case is pending.”
Daleiden and CMP expect to file their own summary judgment motions for Orrick’s review this spring, according to a late Wednesday email by Daleiden.
A two-week preliminary hearing over the videos in the state criminal case pending against Daleiden in San Francisco is set to begin Feb. 19, according to Daleiden.
Planned Parenthood staff recorded in the videos are expected to testify, and footage “censored” by Orrick in a similar civil suit against the defendants brought by the National Abortion Federation will be played in open court, Daleiden said.