National Abortion Federation v. Center for Medical Progress et al

Filing 356

ORDER RE SECOND MOTION TO QUASH by Hon. William H. Orrick granting #230 Motion to Quash. Mr. Johnson's motion to quash is GRANTED without prejudice. (jmdS, COURT STAFF) (Filed on 2/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NATIONAL ABORTION FEDERATION,
et al.,
Plaintiffs,

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ORDER RE SECOND MOTION TO
QUASH

v.

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Case No. 15-cv-03522-WHO

CENTER FOR MEDICAL PROGRESS, et
al.,

Re: Dkt. No. 230

United States District Court
Northern District of California

Defendants.
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On November 15, 2015, third-party Charles Johnson filed a second motion to quash in part

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a deposition subpoena. Mr. Johnson objected to producing documents responsive to three requests

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(Request Nos. 2-4), because those requests sought documents that Mr. Johnson contends are

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protected from disclosure under the California Reporter’s Shield. Cal. Evid. Code § 1070. Mr.

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Johnson claimed that he qualified as a journalist under California law and, as such, was entitled to

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refuse to produce documents that might disclose unpublished information and/or his source. Dkt.

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No. 230.
Mr. Johnson’s deposition took place on November 17, 2015. Dkt. No. 255-11. At the

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deposition, Mr. Johnson refused to produce documents pursuant to Requests 2-4 and also refused

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to respond to deposition questions about his source. Id.
The deposition subpoena was issued by NAF, as part of its efforts to identify who leaked

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copies of the recordings defendants made at NAF’s Annual Meetings. NAF wanted to identify the

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source of the leak in order to determine whether it came from parties or counsel in this case and,

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therefore, was in violation of my TRO protecting that material from disclosure. Dkt. Nos. 255-4,

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279-4.

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Because the limited relevance of Mr. Johnson’s testimony to this case is whether someone

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before me violated the TRO, I ordered all parties, their lawyers, and the employees or agents of the

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parties and lawyers who have had access to the video or audio recordings covered by the

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temporary restraining order to execute declarations under penalty of perjury answering the

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following questions:

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1. Did you disclose any audio or video recordings covered by the TRO on or after July 31,
2015 to Mr. Johnson and if so, what did you disclose?

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2. Do you know the identity of “Patriotgeist,” and if so, who is or are he/she/they?

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3. Do you have any information concerning (i) the disclosure of audio or video recordings
to Mr. Johnson on or after July 31, 2015 or (ii) who “Patriotgeist” is? If your answer is yes
to either or both questions, what is that information?

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United States District Court
Northern District of California

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Dkt. No. 325. The parties filed the responsive declarations on January 12, 15, and 19,
2016. Dkt. Nos. 327, 329, 330, 334.

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Having reviewed those declarations, I am satisfied for the time being by the parties’ and

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their counsels’ responses. Everyone has denied knowledge of the leak, under pain of penalty of

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perjury. Absent further evidence that the leak of the NAF Materials came from a party or counsel

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before me, at this time I will take no further action.1

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Mr. Johnson’s motion to quash is GRANTED without prejudice. If new evidence is

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presented that would necessitate revisiting this issue, with Mr. Johnson or anyone else, I will

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review it at that time.

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IT IS SO ORDERED.
Dated: February 16, 2016

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______________________________________
WILLIAM H. ORRICK
United States District Judge

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I note that Mr. Johnson has indicated that his source was likely a Congressional staffer. I
expect that the committee in the House of Representatives that subpoenaed the records is doing
what it believes is necessary to insure the security of the TRO materials.
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