THOMAS MORE SOCIETY

A National Public Interest Law Firm

September 22, 2015

The Honorable Jason Chaffetz

Member of Congress
Chairman, Committee on Oversight and Government Reform
2157 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Chaffetz:
We are in receipt of the Subpoena duces tecum issued by the House of Representatives to our
client, The Center for Medical Progress (CMP). CMP intends to comply with the subpoena, to ensure
that the Committee on Oversight and Government Reform has the information it needs to further its
investigation into the trafficking by Planned Parenthood and others in the body parts of aborted babies,
along with other related crimes. To that end, we are now compiling and reviewing the requested video
footage for production to you.
However, as we have conveyed to attorneys for your committee, CMP has been placed under a
Temporary Restraining Order by the U.S. District Court for the Northern District of California. See,
Exhs. A & B, attached hereto. We have respectfully contended in Federal Court, both before the
Northern District of California and the Ninth Circuit Court of Appeals, that this Order is an illegal prior
restraint that violates CMPs right to free speech under the First Amendment to the U.S. Constitution,
and its California analog. We have also respectfully contended that this Order cannot apply to subpoenas
from law enforcement agencies or the U.S. Congress. At this time, we are awaiting a decision by the
Ninth Circuit on our Petition for Writ of Mandamus, which seeks to vindicate the free speech rights of
CMP to release these videos, which are of overwhelming public interest.
This past Friday, we were also placed under a further Order in relation to a subpoena from the
Attorney General of Arizona. See, Exh. C, attached hereto. The Court has ordered thatafter the Ninth
Circuit rules on our Petition for Mandamusbefore providing videos prohibited from release by the
Temporary Restraining Order, we must give notice to and hand over those videos to the National
Abortion Federation at least ten days prior to providing the documents to law enforcement.
CMP thus intends to deliver to the Committee, as soon as practicable, requested video footage
that is not prohibited from disclosure to third parties under the Temporary Restraining Order. As for
materials that are prohibited from disclosure by the Temporary Restraining Order, CMPs attorneys are
reviewing the relevant court orders to ensure that CMP may comply both with the court orders and the
19 S. LaSalle | Suite 603 | Chicago, IL 60603 | www.thomasmoresociety.org | P: 312.782.1680 | F: 312.782.1887
Injustice anywhere is a threat to justice everywhere. Rev. Dr. Martin Luther King

House of Representatives subpoenas as fully as possible. We welcome the opportunity to discuss these
issues with the Committee and/or its legal counsel.
Again, please know that CMP intends to comply with the committees subpoena to the fullest
extent possible, in support of its vital investigation into the trafficking of aborted baby parts and other
related crimes. Please feel free contact my office if you or your staff have any further questions or
concerns on this matter.
Very truly yours,

Peter Breen
Counsel for The Center
for Medical Progress
Enclosures

Case3:15-cv-03522-WHO Document15 Filed07/31/15 Page1 of 3

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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NATIONAL ABORTION FEDERATION (NAF),

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Plaintiff,
v.
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES LLC,
DAVID DALEIDEN (aka ROBERT SARKIS),
and TROY NEWMAN,

Case No. 3:15-cv-3522

Judge: William H. Orrick, III
TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE IN SUPPORT OF
PLAINTIFFS APPLICATION FOR
TEMPORARY RESTRAINING
ORDER

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Defendants.
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Exhibit
A

Case3:15-cv-03522-WHO Document15 Filed07/31/15 Page2 of 3

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TO DEFENDANTS THE CENTER FOR MEDICAL PROGRESS, BIOMAX

PROCUREMENT SERVICES LLC, DAVID DALEIDEN (aka ROBERT SARKIS), and
TROY NEWMAN:
This matter comes before me on Plaintiff National Abortion Federations (NAF) Ex
Parte Motion for a Temporary Restraining Order and for an Order to Show Cause Regarding a
Preliminary Injunction, Memorandum of Points and Authorities, and supporting papers.
Having considered the arguments and papers submitted, in order to preserve the status quo
and finding good cause based on the record before me, I GRANT NAFs Ex Parte Motion,
pending a hearing on Monday, August 3. Based on the record before me, I find that NAF is likely
to prevail on the merits of its claims, the balance of hardships tips in its favor, NAF would be
likely to suffer irreparable injury, absent an ex parte temporary restraining order, in the form of
harassment, intimidation, violence, invasion of privacy, and injury to reputation, and the
requested relief is in the public interest.
YOU ARE HEREBY ORDERED TO SHOW CAUSE on Monday, August 3, 2015 at
4:00 p.m., before the Honorable William H. Orrick, at 450 Golden Gate Avenue, San Francisco,
CA 94102, Courtroom 2, why you, your officers, agents, servants, employees, and attorneys, and
any other persons who are in active concert or participation with you, should not be enjoined and
restrained from engaging in, committing, or performing, directly and indirectly, any and all of the
following acts:

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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;

(3)

publishing or otherwise disclosing to any third party the names or addresses of any
NAF members learned at any NAF annual meetings; and

(4)

attempting to gain access to any future NAF meetings.

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Pending hearing on the above Order to Show Cause you, your officers, agents, servants,

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employees, and attorneys, and any other persons who are in active concert or participation with

Case3:15-cv-03522-WHO Document15 Filed07/31/15 Page3 of 3

you ARE HEREBY RESTRAINED AND 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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NAF shall not be required to post a bond for issuance of this Order.

This Order and supporting papers must be served on Defendants as soon as possible, but

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no later than August 1, 2015. Any response or opposition to this Order to Show Cause must be

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filed and served on NAFs counsel no later than August 3, 2015 at 12:00 p.m.

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IT IS SO ORDERED.
Dated: July 31, 2015

By:

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Honorable William H. Orrick, III

United States District Court Judge

Case3:15-cv-03522-WHO Document27 Filed08/03/15 Page1 of 3

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UNITED STATES DISTRICT COURT

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.

Exhibit
B

Case3:15-cv-03522-WHO Document27 Filed08/03/15 Page2 of 3

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false identities, created a fake company, and lied to NAF in order to obtain access to NAFs

annual meetings and gain private information about its members. To do so, defendants entered

into confidentiality agreements in which they promised not to disclose to third parties any

information which [was] disclosed orally or visually to them or to other members without NAFs

consent. Dkt. No. 3-7. Defendants also did not dispute that the Exhibitor Agreement that they

signed, giving them access to the NAF annual meetings, states that NAF would be entitled to

injunctive relief in the event of a breach because monetary damages would not be a sufficient

remedy.

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United States District Court

Northern District of California

Critically, the parties do not disagree about NAFs central allegations: defendants assumed

Defendants recently revealed their true identities. They unquestionably breached their

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agreements with NAF, apparently for the purpose of disclosing what they believe are NAFs

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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

4:00 p.m. NAF shall file a motion for preliminary injunction by August 19, 2015. Defendants

shall file a response by August 24, 2015. NAF shall file a reply by August 26, 2015.

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briefing and hearing on that motion. Dkt. Nos. 5, 6. I GRANT the motion for expedited

discovery. The motion to shorten time is MOOT. Discovery may be served by 12:00 p.m. on

Wednesday, August 5, 2015. The parties may submit any discovery disputes in a joint discovery

letter by 12:00 p.m. on Friday, August 7, 2015. If there are disagreements, a hearing will be held

at 4:00 p.m. on Friday, August 7, 2015.

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United States District Court
Northern District of California

NAF also filed a motion for expedited discovery and a motion to shorten time for the

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IT IS SO ORDERED.
Dated: August 3, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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Case3:15-cv-03522-WHO Document132 Filed09/18/15 Page1 of 2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
CIVIL MINUTES
Date: September 18, 2015
Case No.: 15-cv-03522-WHO

Attorneys for Plaintiff:

Attorneys for Defendant:
Amicus Attorneys (Az.):
Deputy Clerk: Jean Davis

Time: 21 minutes
Judge: WILLIAM H. ORRICK
10:01 a.m. to 10:22 a.m.
Case Name: National Abortion Federation v. Center for
Medical Progress

Linda E. Shostak, Derek F. Foran, and Christopher Robinson

D. John Sauer, Catherine Wynne Short, Carly F. Gammill,
Corrine Konczal, and Peter Breen
Maria M. Syms and Beau Roysden (appearing telephonically)
Court Reporter: Lydia Zinn

PROCEEDINGS
Parties appear for hearing on corporate Fifth Amendment issues. The Court announces
preliminary opinion that the Fifth Amendment privilege does not apply to corporations. Defense
oral argument heard as to the issue. Plaintiff waives oral argument. The Court rules that the
Center for Medical Progress and Biomax LLC have no Fifth Amendment rights to assert. It will
prepare a written order. Defendants make an oral motion for a stay of this ruling. The Court
denies the motion.
The Court announces its intention to grant the motion to file Amicus Curiae Brief of The
Reporters Committee for Freedom of the Press.
The Court then conducted a case management conference. In the event that the Ninth Circuit
rules that discovery is not stayed, the parties are directed to respond to written discovery within
seven days of that Ninth Circuit Order and to complete the depositions within ten days of the
Order. The reason is so that the hearing on the motion for a preliminary injunction may be set as
expeditiously as possible.
Regardless of how the Ninth Circuit rules, a telephonic case management conference will be
coordinated by the Courtroom Deputy as soon as practicable after the ruling in order to discuss
other case management issues, including the timing of the preliminary injunction hearing and
such other matters influenced or directed by that ruling. Counsel should attempt to agree upon a
schedule and any other agenda items prior to the call.
The defendants who have not asserted a valid Fifth Amendment privilege and plaintiff shall meet
and confer with respect to CMPs response to the Arizona Attorney Generals subpoena within

Exhibit
C

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ten (10) days of the Ninth Circuits ruling so that plaintiff may review the material CMP intends
to provide, giving plaintiff information to negotiate with the Arizona Attorney Generals Office
or to challenge the subpoenas sufficiency in Arizona if it thinks a challenge is appropriate.
Defendants may respond to the subpoena ten (10 days) after the conclusion of the meet and
confer at which plaintiff is given the material to review.