SAN FRANCISCO (CN) — A federal judge Wednesday tried to strike a conciliatory tone between Planned Parenthood and the anti-abortion activists who nearly shut it down last year after posting doctored videos online accusing it of selling aborted fetal tissue.
U.S. District Judge William Orrick indicated at the hearing that he would reject the Center for Medical Progress’s motion to stay Planned Parenthood’s lawsuit against it until the Ninth Circuit rules on an appeal the CMP lodged in October.
Orrick said he expects he will order the parties to continue written discovery while halting depositions to avoid duplicating them later on. And he indicated he would give both sides some leeway in the contentious case that has prompted lawmakers across the country to file laws intended to punish Planned Parenthood.
“We have to keep the train moving,” Orrick said. “When this case is decided and comes down, the parties have to be ready to go.
“I just don’t think the automatic stay applies.”
Planned Parenthood sued the CMP in January, claiming it cost it the nonprofit health care organization millions of dollars by setting up a phony fetal tissue procurement company called BioMax to infiltrate Planned Parenthood conferences and secretly record its doctors.
The CMP turned the recordings into a series of dishonest, smear videos, Planned Parenthood says, which were edited to create the impression that it sells fetal tissue.
Planned Parenthood says it donates fetal tissue for medical research with the consent of its patients and does not profit from it.
Orrick in September rejected two motions by the CMP to strike Planned Parenthood’s lawsuit and 15 claims in it, including RICO charges and violations of California law. The CMP then appealed Orrick’s refusal to strike the state law claims under California's anti-SLAAP statute.
Planned Parenthood says filming its doctors without consent is illegal and is not protected by anti-SLAPP laws. It also said the defendants waived their First Amendment rights to publish the videos by signing confidentiality agreements prohibiting them from recording inside conferences and disclosing confidential information.
The CMP claims that Planned Parenthood's anti-SLAPP claim denied them speech rights as “investigative journalists.”
On Wednesday, Center for Medical Progress attorney Catherine Short protested Orrick’s proposal, saying the anti-SLAAP law immunizes her clients from having to do discovery.
In its motion to stay, the CMP said its appeal entitles it to an automatic stay on all counts related to its anti-SLAAP motion, including discovery. It said that allowing the case to proceed would result in an “unending stream of discovery disputes.”
“The major point of it is not to go through that process,” Short said.
Planned Parenthood attorney Amy Bomse asked Orrick for permission to take document depositions and to depose an older, ill defendant, but otherwise seemed pleased with Orrick’s suggested compromise.
“Your proposal does satisfy my fundamental concern that (a stay) will create enormous delay,” she said.
In its opposition to the motion to stay, Planned Parenthood expressed concern that the case might not reach trial until more than five years after the videos were posted online and damaged its reputation.
“Memories will fade and plaintiffs will lose access to evidence,” Planned Parenthood said in its motion.
Orrick tentatively granted Bomse’s request on the condition that duplicate depositions be limited. He set a case management conference for March 14 to review progress.
Short is with Life Legal Defense Foundation in Ojai; Bomse with Arnold & Porter in San Francisco.
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