No Blanket Immunity From Discovery for Abortion Foes

SAN FRANCISCO (CN) – Anti-abortion activists cannot claim Fifth Amendment rights to halt all discovery in a lawsuit over secretly taped videos, a federal judge ruled.
The National Abortion Federation, which sued the self-proclaimed “citizen journalists” group Center for Medical Progress in July, accused them of attempting to “obstruct discovery into their conduct by all means necessary.”
A temporary restraining order was issued to block CMP from publishing its secretly recorded videos of NAF members on July 31.
CMP has released at least four secretly taped videos of Planned Parenthood officials discussing the sale of fetal tissue in recent months. Despite criticism that those videos were deceptively edited to imply wrongdoing, some Republican lawmakers have suggested they will not vote in favor of federal spending bills that include funds for Planned Parenthood – an issue that could lead to a partial government shutdown later this month.
The issue of discovery materials and depositions in the NAF case has been a point of contention between both sides for weeks.
On Sept. 11, U.S. District Judge William Orrick ruled CMP’s co-defendants David Daleiden and Troy Newman must assert their Fifth Amendment rights for each NAF discovery request on a case-by-case basis, instead of refusing all requests.
Orrick had previously denied CMP’s motion to stay discovery on Aug. 27.
CMP also argued it should be allowed to claim Fifth Amendment rights as an entity in an Aug. 25 memo.
The collective-entity doctrine holds that artificial entities like corporations cannot claim Fifth Amendment privileges. However, CMP claims that because NAF has alleged the organization is an “alter ego” of the individual defendants and not a separate entity, the collective-entity doctrine does not apply to it.
CMP also claims that because its individual members – who may be liable for criminal acts – would be the ones to produce the records in question, an exception applies that should allow CMP to claim Fifth Amendment rights.
Thirdly, CMP argues the U.S. Supreme Court should overturn its 1988 Braswell v. United States decision, which concluded that corporate record-holders cannot refuse to produce records based on Fifth Amendment rights even if the records would incriminate them.
“The corporate defendants’ blase assertion that the Supreme Court would reverse itself and hold that corporations do have Fifth Amendment rights is simply wishful thinking,” NAF replied in its Sept. 8 opposition memo.
A hearing to determine whether the CMP can invoke Fifth Amendment rights as a corporate entity is scheduled for Friday, Sept. 18.
A preliminary injunction hearing is set for Oct. 9.

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