National Abortion Federation v. Center for Medical Progress et al

Filing 84

ORDER re #83 STIPULATION Regarding Discovery Schedule, Motion Schedule, and Extension of the TRO filed by National Abortion Federation. Motion Hearing set for 9/18/2015 10:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Signed by Judge William H. Orrick on 08/25/2015. (jmdS, COURT STAFF) (Filed on 8/25/2015)

1 [COUNSEL LISTED ON SIGNATURE PAGE]
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF CALIFORNIA
)
)
)
)
Plaintiff,
)
vs.
)
)
THE CENTER FOR MEDICAL
)
PROGRESS; BIOMAX PROCUREMENT
SERVICES, LLC; DAVID DALEIDEN (aka )
)
“ROBERT SARKIS”); and TROY
)
NEWMAN,
)
)
Defendants.

NATIONAL ABORTION FEDERATION
10 (NAF),
11
12
13
14
15
16
17

Case No. 3:15-cv-3522 (WHO)
Hon. William H. Orrick, III
JOINT STIPULATION AND ORDER
REGARDING DISCOVERY
SCHEDULE, MOTION SCHEDULE,
AND EXTENSION OF THE TRO

18
19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522

STIPULATION

1
2

Pursuant to Local Rules 6-2 and 7-12, National Abortion Federation (“NAF” or “Plaintiff”)

3 and Defendants Center for Medical Progress, Biomax Procurement Services, LLC, David Daleiden
4 (aka “Robert Sarkis”) and Troy Newman (“Defendants”), file this stipulation to, among other
5 things, (1) effect a limited stay of discovery and deadlines associated with certain calendared
6 motions pending resolution of the parties’ dispute regarding the scope and applicability of asserted
7 Fifth Amendment protections, (2) slightly adjust the briefing schedule set by the Court to resolve
8 whether the Fifth Amendment privilege may be invoked by the corporate entities, (3) confirm that
9 the Court’s Temporary Restraining Order (“TRO”) will remain in effect pending the Court’s final
10 disposition on Plaintiff’s preliminary injunction motion, subject to Court-ordered clarification or
11 modification, if any, and (4) ensure that certain individuals who obtained NAF confidential
12 information and are currently known only to Defendants agree to be bound by the TRO as if they
13 were named parties in the suit:
14

WHEREAS, on July 31, 2015, NAF filed its Complaint and moved for a temporary

15 restraining order, order to show cause, preliminary injunction, and motion for expedited discovery
16 (Docket Nos. 1, 3, 5);
17

WHEREAS, on the same day, the Court granted a temporary restraining order and order to

18 show cause, setting a hearing for August 3, 2015 (Docket No. 15);
19

WHEREAS, on August 3, 2015, the Court extended the temporary restraining order to

20 remain in effect pending resolution of NAF’s preliminary injunction motion, finding that Plaintiff
21 was likely to succeed on the merits of its claims and that the evidence presented was sufficient to
22 show irreparable injury for the purposes of a temporary restraining order (Docket No. 27);
23

WHEREAS, on the same day, the Court granted Plaintiff’s motion for expedited discovery,

24 finding good cause to grant discovery because it was necessary for the preliminary injunction
25 motion (Docket No. 27);
26

WHEREAS, on the same day, the Court ordered Plaintiff to file a preliminary injunction

27 motion by August 19, 2015, and set a hearing on that motion for August 27, 2015 (Docket No. 27);
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

1

WHEREAS, on August 5, 2015, the parties exchanged discovery requests, including

1

2 document requests, interrogatories, and deposition notices;
WHEREAS, on August 6, 2015, the parties submitted a stipulated request to extend the

3

4 preliminary injunction schedule to accommodate conflicts in the calendars of the witnesses, to
5 accommodate travel schedules for certain counsel of record, and to allow the parties more time to
6 engage in discovery and prepare papers in connection with Plaintiff’s preliminary injunction
7 motion, and the Court granted that request (Docket No. 34);
WHEREAS, the Court’s August 6, 2015 stipulated order set a deadline of September 4 to

8

9 complete discovery relating to Plaintiff’s preliminary injunction motion, and set an August 20,
10 2015 deadline for the parties to submit a joint discovery letter concerning any discovery disputes
11 relating to Plaintiff’s motion and a hearing on any such disagreements on August 21 (Docket No.
12 34);
WHEREAS, on August 17, 2015, Defendants Center for Medical Progress, Biomax, and

13

14 David Daleiden (aka “Robert Sarkis”) filed a 65-page motion to strike the complaint and to dismiss
15 the case under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (Docket No. 6616 1);
17

WHEREAS, on August 18, 2015 the Court set a briefing schedule on Defendants’ motion to

18 strike the complaint and to dismiss and ordered that the discovery previously ordered in connection
19 with Plaintiff’s preliminary injunction motion was unaffected by Defendants’ motion to strike
20 (Docket No. 70);
21

WHEREAS, on August 19, 2015, the parties submitted a joint letter brief in which

22 Defendants maintained that all discovery was stayed as a result of the motion to strike the
23 complaint (Docket No. 74);
24

WHEREAS, on August 21, 2015, the Court issued an order holding that there was no merit

25 to Defendants’ automatic stay argument because a stay would conflict with Rule 56 as well as the
26 Court’s prior order finding good cause for preliminary injunction discovery under Rule 26 (Docket
27 No. 78);
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

2

1

WHEREAS, on the same day, the Court found that Plaintiff’s written discovery requests

2 were narrow and appropriate, and directed Defendants to respond to those requests by August 25,
3 2015, including with a production of documents (Docket No. 78);
4

WHEREAS, on the same day, the Court acknowledged that Defendants had also issued

5 discovery requests to Plaintiff and stated that the parties’ discovery obligations would be
6 reciprocal;
7

WHEREAS, on the same day, the Court directed that the depositions of Troy Newman,

8 David Daleiden, and a corporate representative of Center for Medical Progress/Biomax
9 Procurement Services LLC of three and a half hours be completed by September 4, 2015 (Docket
10 No. 78);
11

WHEREAS, on the same day, the Court ordered the parties to meet and confer concerning

12 any lingering disputes about Plaintiff’s discovery requests or scheduling and to report back to the
13 Court when the discussion was concluded (Docket No. 78);
14

WHEREAS, on the same day, in the meet-and-confer ordered by the Court, counsel for

15 Defendants advised Plaintiff that each of them – including counsel for the corporate entities Center
16 for Medical Progress and Biomax Procurement Services LLC – would advise their clients to assert
17 their Fifth Amendment right against self-incrimination, including with respect to production of
18 documents, answers to interrogatories, and deposition testimony;
19

WHEREAS, on the same day, the parties agreed that in light of Defendants’ anticipated

20 Fifth Amendment objections, the schedule on Plaintiff’s preliminary injunction motion and certain
21 Defendants’ motion to strike and to dismiss the Complaint needed to be adjusted, and that the
22 parties and the Court would benefit from an early resolution on the issue of whether Center for
23 Medical Progress and Biomax Procurement Services LLC could object to discovery on the basis of
24 the Fifth Amendment (Docket No. 78);
25

WHEREAS, the parties initially agreed – and the Court ordered – a briefing schedule on the

26 assertion of the Fifth Amendment by Center for Medical Progress and Biomax Procurement
27 Services LLC that would have required Plaintiff to file an opposition to that motion on September
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

3

1 7, 2015 (Labor Day), and the parties now wish to move the proposed deadlines for the responsive
2 brief to accommodate the holiday;
3

WHEREAS, two prior modifications have been made to the schedule in this matter,

4 including: (1) the parties stipulated to a schedule extending the briefing and hearing schedule on
5 NAF’s preliminary injunction motion (Doc. 34), which was granted on August 6, 2015 (Doc. 34);
6 and (2) the parties stipulated to shorten time regarding Defendants’ two motions for clarification
7 (Doc. 60-3 & 61), which was filed with the Court on August 20 (Dkt. No. 75) and granted on the
8 same day (Dkt. No. 76).
9

NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the

10 parties, subject to the approval of the Court, that:
11

1.

The briefing and hearing schedule on Plaintiff’s preliminary injunction motion is

12 vacated;
13

2.

The briefing and hearing schedule on Defendants’ motion to strike and to dismiss

14 the Complaint is vacated;
15

3.

The current briefing and hearing schedule on Defendants’ motion to clarify the

16 temporary restraining order (Dkt Nos. 60-3 and 61) remains in effect;
17

4.

The discovery schedule set by the Court on Plaintiff’s preliminary injunction motion

18 is hereby vacated. The parties shall meet and confer on a new schedule after the Court issues its
19 order on the motion regarding the assertion of the Fifth Amendment by Center for Medical
20 Progress and Biomax Procurement Services LLC.
21

5.

Regarding Center for Medical Progress and Biomax Procurement Services LLC’s

22 assertion of the Fifth Amendment, Defendants shall submit an opening brief on August 31, 2015.
23 Plaintiff shall submit any opposition by September 8, 2015. Defendants shall submit a reply by
24 September 11, 2015. The Court shall set a hearing on this motion at its discretion.
25

6.

The Court’s temporary restraining order (as modified, if at all, by the pending

26 motions for clarification or any subsequent modification or clarification), shall remain in effect
27 through the Court’s final disposition on NAF’s preliminary injunction motion.
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

4

1

7.

The individuals that the Complaint alleged identified themselves with the following

2 aliases to gain access to Plaintiff’s annual meetings agree to be bound by the temporary restraining
3 order as if they were named parties in the suit: Susan Tennenbaum, Brianna Allen, Rebecca
4 Wagner, Adrian Lopez, and Philip Cronin. Defendants shall provide each of the foregoing
5 individuals with a copy of the Court’s temporary restraining order, with any order issued upon this
6 stipulation, and with any future order that affects, modifies, extends or alters the TRO in any way
7
8 Dated: August 24, 2015
9
10
11
12
13
14

LINDA E. SHOSTAK (CA SBN 64599)
DEREK F. FORAN (CA SBN 224569)
CHRISTOPER L. ROBINSON
(CA SBN 260778)
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

15
16
17
18

By:

/s/ Derek F. Foran
DEREK F. FORAN
Attorneys for Plaintiff NATIONAL
ABORTION FEDERATION (NAF)

19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

5

1 Dated: August 24, 2015
2

4
5
6

EDWARD L. WHITE III (MI Bar P62485)
[e-mail]
ERIK M. ZIMMERMAN (MI Bar P78026)
[e-mail]
AMERICAN CENTER FOR LAW &
JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, MI 48105
Tel: [phone]
Fax: [phone]
E-Mail:

7
8
9
10
11
12

CARLY F. GAMMILL (TN Bar 28217)
[e-mail]
ABIGAIL A. SOUTHERLAND (TN Bar
022608)
[e-mail]
AMERICAN CENTER FOR LAW &
JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel: [phone]
Fax: [phone]

13
14
15
16
17
18

Attorneys for Defendant,
Troy Newman

19
20 Dated: August 24, 2015

22
23
24
25
26
27
28

/s/ Carly F. Gammill
Carly F. Gammill

BRIAN R. CHAVEZ-OCHOA (CA Bar
190289)
[e-mail]
CHAVEZ-OCHOA LAW OFFICES, INC.
4 Jean Street, Suite 4
Valley Springs, CA 95252
Tel: [phone]; Fax: [phone]

3

21

By:

By: /s/ D. John Sauer
D. John Sauer
CATHERINE W. SHORT (CA Bar 117442)
LIFE LEGAL DEFENSE FOUNDATION
P.O. Box 1313
Ojai, CA 93024-1313
Tel: [phone]
Fax: [phone]
E-Mail: [e-mail]
D. John Sauer
James Otis Law Group, LLC
231 South Bemiston Ave., Suite 800
St. Louis, Missouri 63105
Email: [e-mail]

JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

6

1
2

___________________________________________
Thomas Brejcha
Thomas More Society
19 La Salle St., Ste 603
Chicago, IL 60693
Email: [e-mail]

3
4
5

Attorneys for Defendants,
The Center for Medical Progress,
Biomax Procurement Services LLP,
David Daleiden (aka “Robert Sarkis”)

6
7
8
9

___________________________________________

10

ATTESTATION OF E-FILED SIGNATURE

11
12
13
14
15

I, Derek F. Foran, am the ECF User whose ID and password are being used to file this
JOINT STIPULATION AND [PROPOSED] ORDER REGARDING DISCOVERY SCHEDULE,
MOTION SCHEDULE, AND EXTENSION OF THE TRO. In compliance with General Order 45,
X.B., I hereby attest that Carly Gammill and D. John Sauer concur in this filing.

16 Dated: August 24, 2015

/s/ Derek Foran
DEREK F. FORAN

17
18
19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

7

ORDER

1
2

PURSUANT TO STIPULATION, IT IS SO ORDERED.

3
4

The hearing on the Fifth Amendment issues referred to in paragraph 5 of the above

5 Stipulation shall be held on September 18, 2015 at 10 a.m. in Courtroom 2, 17th floor.
6
7
8
9 Dated: August 25, 2015
10

Honorable William H. Orrick, III
United States District Court

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOINT STIPULATION RE DISCOVERY SCHEDULE, MOTION SCHEDULE, AND EXTENSION OF THE TRO
CASE NO. 3:15-CV-3522
sf-3569225

8