National Abortion Federation v. Center for Medical Progress et al
Filing
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ORDER KEEPING TEMPORARY RESTRAINING ORDER IN EFFECT UNTIL RESOLUTION OF REQUEST FOR PRELIMINARY INJUNCTION by Judge William H. Orrick granting #5 Ex Parte Application for Expedited Discovery; finding as moot #6 Motion to Shorten Time. The temporary restraining order issued on July 31, 2015 remains in effect pending resolution of the preliminary injunction motion. A hearing on that motion is set for Thursday, August 27, 2015 at 4:00 p.m. (jmdS, COURT STAFF) (Filed on 8/3/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NATIONAL ABORTION FEDERATION,
Case No. 15-cv-03522-WHO
Plaintiff,
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v.
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CENTER FOR MEDICAL PROGRESS, et
al.,
Defendants.
United States District Court
Northern District of California
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ORDER KEEPING TEMPORARY
RESTRAINING ORDER IN EFFECT
UNTIL RESOLUTION OF REQUEST
FOR PRELIMINARY INJUNCTION
Re: Dkt. No. 3, 5 and 6
On Friday, July 31, 2015, plaintiff National Abortion Federation (“NAF”) filed and I
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granted its motion for a temporary restraining order in order to preserve the status quo since the
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moving papers led me to conclude that NAF was likely to prevail on the merits of its claims, the
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balance of hardships tipped in its favor, it would be likely to suffer irreparable injury absent the
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order, and issuance of the order was in the public interest. Because the defendants did not have an
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opportunity to respond, I set a hearing on August 3, 2015 to allow a written response and oral
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argument. See Dkt. No. 15. Pending the hearing, I ordered that defendants were restrained and
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enjoined from:
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(1)
publishing or otherwise disclosing to any third party any video, audio,
photographic, or other recordings taken, or any confidential information learned, at
any NAF annual meetings;
(2)
publishing or otherwise disclosing to any third party the dates or locations of any
future NAF meetings; and
(3)
publishing or otherwise disclosing to any third party the names or addresses of any
NAF members learned at any NAF annual meetings.
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Having now reviewed defendants’ arguments and declarations, and after the hearing, I
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ORDER that the temporary restraining order remain in effect until I decide the motion for a
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preliminary injunction.
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Critically, the parties do not disagree about NAF’s central allegations: defendants assumed
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false identities, created a fake company, and lied to NAF in order to obtain access to NAF’s
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annual meetings and gain private information about its members. To do so, defendants entered
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into confidentiality agreements in which they promised not to disclose to third parties “any
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information which [was] disclosed orally or visually” to them or to other members without NAF’s
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consent. Dkt. No. 3-7. Defendants also did not dispute that the Exhibitor Agreement that they
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signed, giving them access to the NAF annual meetings, states that NAF would be entitled to
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injunctive relief in the event of a breach because monetary damages would not be a sufficient
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remedy.
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Defendants recently revealed their true identities. They unquestionably breached their
United States District Court
Northern District of California
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agreements with NAF, apparently for the purpose of disclosing what they believe are NAF’s
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illegal activities. NAF seeks relief from this Court because defendants have obtained confidential
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information in violation of the confidentiality agreements and threaten to publish this information,
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and because publication would cause irreparable injury. The evidence presented by NAF,
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including that defendants’ recent dissemination of videos of and conversations with NAF affiliates
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has led to harassment and death threats for the individuals in those videos, is sufficient to show
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irreparable injury for the purposes of the temporary restraining order.
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Defendants concede that NAF has standing on at least some of the claims in the complaint.
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Their other arguments to defeat or narrow injunctive relief may be renewed during the argument
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over the request for a preliminary injunction, but they appear insufficient to tip the analysis of
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either the merits or irreparable injury in their favor. Defendants’ counsel candidly agreed that he
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was not aware of any case that has held that a party who (1) by false pretenses gains access to
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confidential information, (2) promises to keep the information confidential, and (3) agrees that
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breach of his agreement would subject him to injunctive relief, may nonetheless violate that
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agreement because of his First Amendment rights. Neither am I. That set of issues is material to
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my analysis.
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The temporary restraining order that I issued on July 31, 2015 and repeated orally at the
hearing and in the first paragraph of this Order remains in effect pending resolution of the
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preliminary injunction motion. A hearing on that motion is set for Thursday, August 27, 2015 at
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4:00 p.m. NAF shall file a motion for preliminary injunction by August 19, 2015. Defendants
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shall file a response by August 24, 2015. NAF shall file a reply by August 26, 2015.
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NAF also filed a motion for expedited discovery and a motion to shorten time for the
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briefing and hearing on that motion. Dkt. Nos. 5, 6. I GRANT the motion for expedited
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discovery. The motion to shorten time is MOOT. Discovery may be served by 12:00 p.m. on
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Wednesday, August 5, 2015. The parties may submit any discovery disputes in a joint discovery
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letter by 12:00 p.m. on Friday, August 7, 2015. If there are disagreements, a hearing will be held
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at 4:00 p.m. on Friday, August 7, 2015.
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United States District Court
Northern District of California
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IT IS SO ORDERED.
Dated: August 3, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
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