Trials & Litigation

Anti-abortion group loses bid to stop discovery in lawsuit over secret video

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The San Francisco-based 9th U.S. Circuit Court of Appeals yesterday turned down a bid to stop discovery in a lawsuit over a controversial abortion-related video, the Recorder reported.

The high-profile case centers around undercover videos created by an anti-abortion group called the Center for Medical Progress. The videos have sparked efforts by political leaders to remove funding from Planned Parenthood, because they purport to show Planned Parenthood personnel discussing selling body parts from aborted fetuses. That claim is vigorously disputed by the organization and its allies, who say the videos are misleading.

The National Abortion Federation sued the Center for Medical Progress and others in Northern California district court over videos that the center made surreptitiously at the federation’s annual conference. It alleged invasion of privacy, fraud, conspiracy, breach of contract and Racketeer Influenced and Corrupt Organizations Act violations.

The Center for Medical Progress responded with a motion alleging that the National Abortion Federation had filed a strategic lawsuit against public participation—that is, the lawsuit was an effort to silence it. Judge William Orrick III has permitted limited discovery prior to ruling on that anti-SLAPP motion.

The Center for Medical Progress petitioned the 9th Circuit for a writ of mandamus prohibiting that discovery. On Wednesday, the appeals court turned down that petition down, ruling (PDF) that Orrick’s decision was “not clearly erroneous.”

A number of factual questions must be resolved before the district court can rule, the panel said. They include whether the videos were made contrary to a confidentiality agreement the National Abortion Federation requires convention attendees to sign, and whether that contract effectively waives the signer’s right to file an anti-SLAPP motion.

“Far from being clearly erroneous, the district court’s decision to permit discovery appears to be necessary to permit it to resolve the difficult issues present in this case, and thus is consistent with Ninth Circuit law,” the court wrote.

The Recorder notes that Orrick also ruled Wednesday that the corporate defendants—the Center for Medical Progress and Biomax Procurement Services, the dummy biotech company that went to the conference—may not take the Fifth Amendment in the litigation, though individuals may. Politico adds that a California state court judge has also ordered discovery over the Center for Medical Progress’ objections in a separate lawsuit, filed by a former Planned Parenthood contractor, over the surreptitious videos.

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