1 6 McDERMOTT WILL & EMERY LLP CHARLES E. WEIR (State Bar No. 211091) cweir@mwe.com GREGORY JONES (State Bar No. 229858) gjones@mwe.com KATE M. HAMMOND (State Bar No. 293433) khammond@mwe.com 2049 Century Park East, Suite 3800 Los Angeles, CA 90067 Telephone: 310.277.4110 Facsimile: 310.277.4730 7 Attorneys for Plaintiffs 2 3 4 5 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES – CENTRAL DISTRICT 11 12 LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 10 STEMEXPRESS, LLC, and CATHERINE DYER, 13 14 15 16 17 18 19 20 Plaintiffs, v. THE CENTER FOR MEDICAL PROGRESS, BIOMAX PROCUREMENT SERVICES, LLC, DAVID DALEIDEN (aka “ROBERT SARKIS”), DOE 1 (aka “SUSAN TENNENBAUM”), and DOES 2 through 100, inclusive, Defendants. 21 22 CASE NO. PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION, AND EXPEDITED DISCOVERY ORDER; MEMORANDUM OF POINTS AND AUTHORITIES; APPENDIX OF NONCALIFORNIA AUTHORITIES [COMPENDIUM OF EVIDENCE FILED CONCURRENTLY HEREWITH; PROPOSED ORDER LODGED CONCURRENTLY HEREWITH] Hearing Date: Time: Dept: Judge: July 27, 2015 8:30 a.m. _____ _____ 23 24 25 26 27 28 DM_US 62765281-2.097549.0011 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 SUMMARY OF CASE AND REQUESTED RELIEF 2 Plaintiffs StemExpress, LLC and Catherine Dyer are forced to file this action and bring 3 this ex parte application for a temporary restraining order to prevent the irreparable damage that 4 will ensue when Defendants imminently release a video on the internet (possibly as soon as 5 tomorrow) that was secretly and illegally recorded by defendant David Daleiden using a fake 6 name (“Robert Sarkis”) and pretending to work for a fake company (defendant “BioMax 7 Procurement Services, LLC”) as part of the recently-launched public campaign by defendant The 8 Center for Medical Progress (“CMP”) against Planned Parenthood involving one of the most 9 explosive subjects in American culture – abortion and the use of fetal tissue to further medical 10 research. Defendants’ secret recording of their meeting with Plaintiffs is a clear violation of 11 California’s Invasion of Privacy Act, which criminalizes the non-consensual recording of 12 confidential communications. Pen. Code § 632(a). Indeed, late last week, both the United States 13 Department of Justice and the California Department of Justice initiated criminal investigations 14 into Defendants’ publication of Daleiden’s other secretly-recorded videos of Planned 15 Parenthood’s physicians. Plaintiffs are next in line. 16 It is not just the privacy invasion caused by the illegal video’s release that drives the need 17 for emergency injunctive relief here – although that alone justifies granting this application under 18 the Privacy Act. See Pen. Code § 637.2(b). Releasing the video will draw StemExpress and Dyer 19 deeper into the vortex of public animosity stirred up by CMP’s crusade to brand everyone 20 associated with Planned Parenthood as evil criminals, which will not only have (and already has 21 had) a detrimental impact on StemExpress’s business reputation and relationships, but more 22 importantly, it presents a real threat of danger to Dyer’s personal safety. 23 StemExpress’s limited exposure in CMP’s nascent battle thus far, which has been the publication 24 of StemExpress’s confidential and sensitive business documents, Dyer has received numerous 25 threats of physical violence, prompting the involvement of law enforcement and the hiring of a 26 personal security team. Indeed, just this past Saturday night, Dyer’s security chased away a 27 suspicious character photographing her home. Defendants’ imminent release of the video will 28 only aggravate an already-fragile situation. Only an injunction can prevent this. DM_US 62765281-2.097549.0011 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY Even with 1 2 Plaintiffs hereby apply on an ex parte basis for a temporary restraining order and an 3 order requiring defendants The Center for Medical Progress, BioMax Procurement Services, 4 LLC, David Daleiden, and Doe One (aka “Susan Tennenbaum”), as well as all officers, directors, 5 shareholders, members, employees, agents, and all persons acting with The Center for Medical 6 Progress or BioMax Procurement Services, LLC or on their behalf, to show cause why a 7 preliminary injunction should not be issued pending trial in this action as follows: LOS ANGELES ATTORNEYS AT LAW 8 M C D E R M O T T W I L L & E M E R Y LLP APPLICATION 1. refrain from (i) any manner of releasing, publishing, disclosing, posting, sharing, 9 uploading, downloading, transferring, or any other means of disseminating (ii) any file, media, 10 device, or document be it electronic, digital, analog, or physical in nature (iii) that contains or 11 represents a recording of any portion (in whole or part) of (iv) any communication (verbal and 12 non-verbal) (v) made by Catherine Dyer, Kevin Cooksy, or Megan Barr (vi) on the evening of 13 May 22, 2015 at approximately between 4:30 p.m. PST and 6:45 p.m. PST (vii) that occurred at, 14 near, or in the restaurant known as Bistro 33, located at 4364 Town Center Boulevard, El Dorado 15 Hills, California 95762; and 16 2. refrain from (i) any manner of releasing, publishing, disclosing, posting, sharing, 17 uploading, downloading, transferring, or any other means of disseminating (ii) any file or 18 physical document (iii) on which StemExpress, LLC is identified, including the three 19 “documents” presently posted on the “Document Vault” website of The Center Medical Progress, 20 located at http://www.centerformedicalprogress.org/human-capital/document-vault/, bearing the 21 dates January 10, 2013, March 20, 2013, and January 1, 2013. 22 Plaintiffs hereby also apply on an ex parte basis for an order permitting Plaintiffs to 23 conduct the following limited expedited discovery: (a) no more than 5 depositions to be noticed 24 on 3 days and completed no later than 5 court days before any hearing on the Order to Show 25 Cause re: Preliminary Injunction; and (b) no more than 10 document requests to which written 26 responses and responsive documents are due within 7 calendar days from the date on which they 27 are served. 28 DM_US 62765281-2.097549.0011 -2- EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 This application is made pursuant to Code of Civil Procedure § 527, Penal Code §§ 632 & 2 637.2(b), and Penal Code § 496 & Business & Professions Code § 17203 on the grounds that: (i) 3 Plaintiffs are likely to succeed on the merits of their claims for violations of the Invasion of 4 Privacy Act (Pen. Code § 632), Penal Code § 496, and Unfair the Competition Law (Bus. & Prof. 5 Code § 17203); (ii) that unless the temporary restraining order is granted, Plaintiff wills suffer 6 irreparable injury in that Defendants have threatened to imminently release on CMP’s website the 7 video containing Plaintiffs’ illegally-recorded private conversation and that the release of the 8 video, as well as the disclosure of StemExpress’s confidential and sensitive business documents, 9 will result in permanent reputational harm to StemExpress and endanger the personal safety of 10 Dyer and the other participants of the meeting; and (iii) that the balance of hardships weighs 11 sharply in Plaintiffs’ favor, as Defendants will suffer little, if any, pecuniary or constitutional 12 harm if the requested injunction is granted. 13 GROUNDS FOR NO NOTICE 14 Pursuant to Code of Civil Procedure § 527(c)(1), Plaintiffs seek a temporary restraining 15 without notice to Defendants on the grounds “that great or irreparable injury will result to the 16 applicant before the matter can be heard on notice.” Plaintiffs have a valid fear that Defendants 17 will release the video of their May 22 private meeting on CMP’s website simply upon receiving 18 notice of this application. This fear is founded upon the exceptional measures Defendants have 19 used to obtain the illegal video (setting up a fake company with a fake website using fake email 20 addresses, business cards, and brochures; and spending years “undercover” gathering video 21 footage from unwitting persons), Daleiden’s staunch belief that his actions are not only legal, but 22 authorized by the First Amendment, and his continued threats to release “undercover” material, 23 even in the face of criminal investigations. Coupled with the “push-of-a-button” ease with which 24 Defendants can release the video, the lightning speed in which it will spread throughout the 25 internet, and the permanent and potentially-safety endangering consequences that publication will 26 have, the only way such great and irreparable injury can be avoided is to grant the requested relief 27 without first tipping off Defendants. See Dyer Decl. ¶¶ _-_; Cooksy Decl. ¶¶ _-_; Barr Decl. ¶¶ 28 _-_; Jones Decl. ¶¶ _-_, Exs. _-_. Any potential harm from granting this relief without notice can DM_US 62765281-2.097549.0011 -3EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 be mitigated by setting a short duration period for the temporary restraining order and an 2 expedited order to show cause hearing date. APPENDIX OF NON-CALIFORNIA AUTHORITIES 4 Pursuant to California Rules of Court 3.1113(i), Plaintiffs have appended to this 5 application as Exhibits A-Z, the non-California authorities cited in the accompanying 6 memorandum of points and authorities. 7 This application is based upon the attached memorandum of points and authorities, the 8 accompanying compendium of evidence, which contains the declarations of Catherine Dyer, 9 Megan Barr, Kevin Cooksy, and Gregory R. Jones and the exhibits attached thereto, the 10 complaint filed in this action on July 26, 2015, and upon such further argument or evidence as 11 may be presented at the hearing on the application. 12 LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 3 13 Dated: July 26, 2015 McDERMOTT WILL & EMERY LLP 14 By: 15 CHARLES E. WEIR Attorneys for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 DM_US 62765281-2.097549.0011 -4- EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 On July 14, 2015, defendant The Center for Medical Progress (“CMP”), an anti-abortion 4 group founded by defendant David Daleiden, launched a highly-charged public campaign 5 accusing Planned Parenthood of illegally using “partial-birth abortions to sell baby parts.” The 6 centerpiece of CMP’s attack on Planned Parenthood is a series of heavily-edited and misleading 7 videos cobbled together from secret video footage taken by Daleiden posing as an employee of a 8 fake biomedical company and questioning Planned Parenthood doctors about the sale of fetal 9 tissue. California’s Invasion of Privacy Act criminalizes the recording of a “confidential 10 communication” without the consent of all parties. Pen. Code § 632(a). Last week, both the 11 United States Department of Justice and the California Department of Justice announced the 12 initiation of criminal investigations into the Planned Parenthood videos released by CMP. 13 Plaintiff StemExpress, LLC is a victim of the same illegal “undercover” tactics. 14 On May 22, 2015, Daleiden (using the pseudonym “Robert Sarkis”) and his associate 15 (defendant Doe One aka “Susan Tennenbaum”) posed as representatives of a fake biomedical 16 company (defendant “BioMax Procurement Services, LLC”) and met with several employees of 17 StemExpress, including plaintiff Catherine Dyer (the chief executive officer), Kevin Cooksy (the 18 general counsel), and Megan Barr. The meeting occurred in a secluded restaurant in a private 19 setting. Dyer took overt steps to ensure that their conversation was not overhead. The meeting 20 lasted a little over two hours. Afterward, “BioMax” signed a nondisclosure agreement with 21 StemExpress and obtained several of its confidential documents. It was not until CMP’s release 22 of the Planned Parenthood videos in the past weeks that Dyer and her team realized that they had 23 been tricked by Daleiden with an identical ruse. Defendants’ secret recording of the May 22 24 meeting is a clear violation of the Invasion of Privacy Act. And because CMP has now publicly 25 threatened to release the “hundreds of hours of undercover footage” it has amassed, Plaintiffs face 26 the imminent and irreparable harm of having their illegally-recorded private conversation and 27 their likenesses broadcast to the entire world. Defendants should be temporarily restrained and 28 preliminarily enjoined from doing this, as authorized by the Act. See Pen. Code § 637.2(b). DM_US 62765281-2.097549.0011 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 Defendants’ secret video is not the only confidential information they have illegally 2 obtained from Plaintiffs. Defendants have also acquired (and published on CMP’s website) 3 documents containing StemExpress’s confidential and sensitive business information, including 4 the identities, locations, contact information, and specimen orders of StemExpress’s research 5 clients. Exposing this information not only jeopardizes StemExpress’s relationships with its 6 clients, which are strictly confidential for proprietary research reasons, it also endangers those 7 researchers’ reputations and personal safety. Even CMP’s limited exposure of StemExpress’s 8 affiliation with Planned Parenthood over the past few weeks has led to serious violent threats to 9 Dyer, which has prompted its own criminal investigation and caused her to take personal security 10 measures. StemExpress believes that Defendants obtained copies of these documents from a 11 former employee who publicly shares Daleiden’s views on abortion in violation of her express 12 confidentiality and nondisclosure obligations. The disclosure (and continued publication) of 13 these documents threatens the livelihood and reputation of StemExpress’s business. Therefore, 14 Defendants also should be temporarily restrained and preliminarily enjoined from doing this. 15 StemExpress is caught in the wake of CMP’s public crusade against Planned Parenthood 16 involving one of the most explosive subjects in American culture. Given the intense news and 17 social media attention that CMP’s campaign has already garnered, it will be virtually impossible 18 to unring the bell once the illegally-recorded video is released. Only a temporary restraining 19 order and preliminary injunction can avoid this injustice. Plaintiffs respects Defendants right to 20 freedom of speech, and this lawsuit is not intended to suppress the lawful exercise of those rights. 21 But the First Amendment does not provide carte blanche to trample the privacy rights and 22 confidentiality obligations of the citizens of this state. It provides no safe harbor here. Therefore, 23 the Court should grant the application and issue the requested temporary restraining order, order 24 to show cause re: preliminary injunction, and expedited discovery order. 25 II. JUSTIFICATION FOR GRANTING RELIEF WITHOUT NOTICE 26 Plaintiffs seek a temporary restraining order without first providing notice to Defendants. 27 Plaintiffs do not do so lightly and understand that obtaining injunctive relief in this context is only 28 reserved for extraordinary situations. But Plaintiffs’ predicament qualifies as extraordinary. DM_US 62765281-2.097549.0011 -2EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 Plaintiffs have a valid fear that Defendants will release the video of their May 22 private meeting 2 on CMP’s website simply upon receiving notice of this application. This fear is founded upon the 3 exceptional measures Defendants have used to obtain the illegal video (setting up a fake company 4 with a fake website using fake email addresses, business cards, and brochures; and spending years 5 “undercover” gathering video footage from unwitting persons), Daleiden’s staunch belief that his 6 actions are not only legal, but authorized by the First Amendment, and his continued threats to 7 release “undercover” material, even in the face of criminal investigations. Coupled with the 8 “push-of-a-button” ease with which Defendants can release the video, the lightning speed in 9 which it will spread throughout the internet, and the permanent and potentially-safety 10 endangering consequences that publication will have, the only way such great and irreparable 11 injury can be avoided is to grant the requested relief without first tipping off Defendants. Any 12 potential harm from granting this relief without notice can be mitigated by setting a short duration 13 period for the temporary restraining order and an expedited order to show cause hearing date. 14 Therefore, the Court should grant this application without notice. 15 III. FACTUAL BACKGROUND 16 A. 17 StemExpress is a small life sciences company based in Placerville, California that 18 specializes in the procurement and distribution of human blood, tissue products, primary cells, 19 and other clinical specimens to biomedical researchers around the world for the purpose of 20 conducting medical research. Dyer Decl. ¶ _. StemExpress’s clients include almost every major 21 medical research institution in the country, as well as many major pharmaceutical companies. Id. 22 StemExpress’s products and services support leading research institutions in the United States 23 and internationally, including medical schools, pharmaceutical companies, and federal agencies, 24 to provide stem cells and other human tissue critical to medical research. Id. ¶ _. Cells produced 25 by the physicians, scientists, medical technicians, and nurses at StemExpress are currently used in 26 research globally aimed at finding cures and treatments for cancer, diabetes, HIV/AIDS, cardiac 27 disease, and other significant medical conditions. Id. 28 StemExpress Approximately 10 percent of StemExpress’s business relates to the procurement of human -3- DM_US 62765281-2.097549.0011 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 fetal tissue. Dyer Decl. ¶ _. This tissue is collected from clinical abortion procedures in state 2 licensed facilities from consented donors only. Id. Approximately 90% of the fetal tissue 3 collected by StemExpress is shipped to its laboratory to be processed down to specific cells. Id. 4 Medical researchers engage StemExpress to procure specific types of fetal specimens (or cells 5 derived therefrom), and StemExpress procures those specimens from medical facilities that 6 perform the procedures, such as Planned Parenthood. Id. ¶ _. StemExpress does not work with 7 every Planned Parenthood affiliate in California. Id. StemExpress requires that an informed 8 consent be discussed and signed by each donor for any donation of tissue of all types, including 9 human fetal tissue or blood. Id. ¶ _. LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 10 Protecting the privacy of its researchers and suppliers is always the highest priority at 11 StemExpress. Dyer Decl. ¶ _. StemExpress is routinely asked to agreements with strict 12 provisions protecting the privacy of our client-researchers, their proprietary information, and 13 above all, the donors’ information. 14 competitive and based largely on proprietary intellectual property. Id. ¶ _. The consequences of 15 unauthorized disclosure of confidential information may significantly damage the competitive 16 position of the researcher, lost market opportunity, loss of intellectual property rights, all of which 17 will harm the reputation of StemExpress and may expose the company to financial damages. Id. Id. This is because biomedical research is intensely 18 As part of its commitment to the privacy and confidentiality of its donors and clients, 19 StemExpress also requires that each of its employees and independent contractors sign 20 agreements that require them to maintain the confidentiality of a broad range of information and 21 prohibit them from disclosing such information publicly. Dyer Decl. ¶ _, Exs. _(§ _)-_ (§_). 22 Those agreements require employees and independent contractors to maintain confidentiality 23 after termination and to return StemExpress documents and materials upon leaving the company. 24 Id., Exs. _(§ _) -_ (§_). 25 documents, such as StemExpress’s Code of Conduct and Clinic Procedures and Policies. Id. ¶ _, 26 Exs. _(§_) -_ (§_). These confidentiality policies are reiterated in other employment 27 28 DM_US 62765281-2.097549.0011 -4- EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 B. 2 CMP is anti-abortion group founded by Daleiden.1 Jones Decl. ¶ _, Ex. _ [7/15/15 Media 3 Matters article]. CMP’s ostensible objective (titled the “Human Capital Project”) is to expose 4 “how Planned Parenthood sells the body parts of aborted babies.” Id. ¶ _, Ex. _, p. 1 [CMP 5 “Human Capital” page]. CMP implores the public and Congress to take action in response to the 6 alleged “black market in aborted baby parts.” Id. p. 2. CMP’s Publicity Campaign Against Planned Parenthood 7 CMP’s website went live on July 6, 2015. Jones Decl. ¶ _, Ex. _, p. 12 [CMP “Blog” 8 page]. On July 14 at 8:00 a.m. ET, CMP released a heavily-edited video from “undercover 9 footage” of Daleiden posing as a representative for a fake biomedical company and questioning a 10 doctor for Planned Parenthood about the sale of fetal tissue. Id. p. 8-11; Dyer Decl. ¶ _. Daleiden 11 is identified as the “contact” for the release. Jones Decl. ¶ _, Ex. _, pp. 8-11 [CMP “Blog” page]. 12 The video is edited to present a misleading story on multiple fronts. For example, the nearly 9- 13 minute video inaccurately suggests that the Planned Parenthood clinics where the doctor works 14 sells fetal tissue specimens to StemExpress when the truth is that StemExpress has never had a 15 relationship with that doctor or those clinics. Dyer Decl. ¶ _. 16 CMP’s claims that the July 14 video is the product of a “thousands of research hours to 17 painstakingly gather hundreds of hours of undercover footage, dozens of eye-witness testimonies, 18 and nearly two hundred pages of primary source documents.” Jones Decl. ¶ _, Ex. _, p. 1 [CMP 19 “Human Capital” page] (emphasis added). CMP promises that “[t]his information will continue 20 to be made available the public [on its website].” Id. (emphasis added). 21 True to its word, on July 14, CMP published documents on its website that were illegally 22 obtained from StemExpress. Jones Decl. ¶ _, Ex. _, p. 7 [CMP “Blog” page]; id. ¶ _, Ex. _, p. 1-4 23 [CMP “Document Vault” page]; Dyer Decl. ¶¶ _-_. 24 documents posted by CMP contain non-confidential information, such as StemExpress’s 25 brochure, several of the documents contain highly confidential and sensitive information, such as 26 the names and addresses of the researchers to whom StemExpress supplies specimens. Id. The 27 1 28 Although certain of the StemExpress Although CMP has a registered agent for service of process in California, the corporate address listed on the Secretary of State’s website is a shopping mall in Irvine, California. Jones Decl.¶ __. DM_US 62765281-2.097549.0011 -5EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 information contained on these documents suggests that they were given to CMP by Holly 2 O’Donnell, a former employee of StemExpress. Id. This inference is reinforced by certain public 3 posts that O’Donnell made on her Facebook page on July 15 linking to CMP’s website, the July 4 14 video, and Daleiden’s July 15 interview with Bill O’Reilly. Jones Decl. ¶ _, Exs. _-_ 5 [Facebook screenshots]. 6 On July 21 at 8:00 a.m. ET, which is exactly one week to the minute after the July 14 7 video release, CMP released another heavily-edited video of “undercover footage” of Daleiden 8 posing as a representative for a fake biomedical company and questioning another Planned 9 Parenthood doctor. Jones Decl. ¶ _, Ex. _, p. 1-4 [CMP “Blog” page]; Dyer Decl. ¶ _. As with 10 the July 14 video, the July 21 video attacks Planned Parenthood and accuses it of profiteering on 11 the sale of human fetal tissue as well as changing medical techniques in response specimen 12 orders. Jones Decl. ¶ _, Ex. _, p. 1-4 [CMP “Blog” page]. StemExpress is only mentioned once 13 during the video and it was by Daleiden’s associate. Dyer Decl. ¶ _. 14 Last week, both the United States Department of Justice and the California Department of 15 Justice announced the initiation of criminal investigations into the Planned Parenthood videos 16 released by CMP. Jones Decl. ¶ _, Ex. _ [federalist article]; id. ¶ _, Ex. _ [sacbee article]. On 17 July 22, CMP released a statement suggesting that it would continue with its plan to release 18 additional information and that “Planned Parenthood trying to use the power of their political 19 cronies to shut down free speech, to silence the freedom of the press, to persecute David 20 Daleiden.” Id. ¶ _, Ex. _, p.1 [CMP “Blog” page]. 21 If CMP’s representations about having “hundreds of hours of undercover footage” is true, 22 then based on its promise to continue to publicly release the footage and its practice of releasing 23 edited “undercover videos” of its meetings with companies at 8:00 a.m. ET on each Tuesday for 24 the last two weeks, it is reasonable to expect that CMP will publish on its website another video at 25 8:00 a.m. ET on Tuesday, July 28. 26 C. Defendants’ Illegal Recording Of StemExpress’s Employees 27 In April 2015, Megan Barr, the Procurement Manager of StemExpress, attended a 28 women’s health conference in Baltimore, Maryland. Barr Decl. ¶ _. During the conference, Barr DM_US 62765281-2.097549.0011 -6EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 was approached by two people who claimed that their names were “Robert Sarkis” and “Susan 2 Tennenbaum.” Id. ¶ _. These people stated that they work for a company called BioMax 3 Procurement Services, LLC (“BioMax”), which they claimed was a company that also procured 4 and distributed human fetal tissue.2 Id. “Sarkis” and “Tennenbaum” asked Barr a number of 5 questions concerning StemExpress’s business and pricing, expressed interest in partnering with 6 StemExpress, requested a meeting with StemExpress’s chief executive officer (Catherine Dyer), 7 and provided Barr with their email addresses (bob@biomaxps.com; susan@biomaxps.com). Id. 8 On May 19, “Sarkis” emailed Barr stating that he would be “in the Bay Area meeting with 9 investors” during the upcoming weekend and invited Barr and Dyer to be his “guests for lunch or 10 dinner” in Sacramento on May 22. Barr Decl. ¶ _, Ex. _. The parties agreed to meet at Bistro 33, 11 a restaurant in El Dorado Hills, California at 4:30 p.m. on May 22. Id. ¶ _, Ex. _. Dyer chose 12 that restaurant because at the time they were scheduled to meet, the restaurant typically has open 13 seating in its large dining room with remote tables and is typically only sparsely attended before 14 the regular evening dinner period. Dyer Decl. ¶ _. 15 On May 22, Dyer, Barr, and Kevin Cooksy (StemExpress’s Vice President of Corporate 16 Development and Legal Affairs) attended a dinner meeting with “Sarkis” and “Tennenbaum” at 17 Bistro 33. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. Unbeknownst to them at the time, 18 the man posing as “Bob Sarkis” was actually defendant David Daleiden. Dyer Decl. ¶ _; Barr 19 Decl. ¶ _; Cooksy Decl. ¶ _. Dyer, Barr, and Cooksy arrived at the restaurant together at around 20 4:30 p.m. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. At that time, there were only about 21 10-12 of people dining at the restaurant. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. They 22 were seated in a remote area of the restaurant situated on a segregated floor that had no other 23 diners. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. Other than the staff, the only other 24 people at the restaurant were located at the bar near the end of the main dining room and outside 25 on the patio. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. The main dining area was 26 virtually empty accept for them. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. 27 2 28 As with CMP, BioMax’s corporate address is also a shopping mall (in Norwalk, California). Jones Decl. ¶ _. But unlike CMP, BioMax does not have a registered agent for service of process because he resigned on July 7 – one day after CMP’s website went live. Id. DM_US 62765281-2.097549.0011 -7EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 During the meeting, “Sarkis” and “Tennenbaum” asked numerous questions concerning 2 StemExpress’s fetal tissue procurement business, including how it develops relationships with 3 fetal tissue clinics, the financial interchange between the clinics and StemExpress and 4 StemExpress’s revenues, and specific abortion and tissue collection practices used by physicians. 5 Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. In addition, “Tennenbaum” also asked Dyer 6 personal questions concerning her family and their opinions about StemExpress’s work procuring 7 fetal tissue. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. 8 Throughout the meeting, whenever any restaurant employees approached the table, Dyer 9 would put her hand up to the stop conversation until they were alone again. Dyer Decl. ¶ _; Barr 10 Decl. ¶ _; Cooksy Decl. ¶ _. And when another dining party was finally seated near the table, 11 Dyer and Cooksy both asked “Tennenbaum” to lower her voice after she began speaking loudly. 12 Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. Neither Dyer, Barr, nor Cooksy believed that 13 anyone else at the restaurant was in a position to overhear or record their conversation. Dyer 14 Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. To the contrary, the conversation was only audible to 15 the persons sitting at their table. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. 16 Dyer, Barr, and Cooksy believed that their conversation during the May 22 meeting with 17 “Sarkis” and “Tennenbaum” was confidential. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. 18 At no point did any of them know, believe, or consent to the conversation being recorded (by 19 video or any other means) by either “Sarkis” or “Tennenbaum.” Dyer Decl. ¶ _; Barr Decl. ¶ _; 20 Cooksy Decl. ¶ _. And if they had known that this was the intention, they never would have 21 agreed to meet with them or answer the questions they asked about StemExpress or their personal 22 lives. Dyer Decl. ¶ _; Barr Decl. ¶ _; Cooksy Decl. ¶ _. 23 Continuing the ruse after the May 22 meeting, “Sarkis” made repeated requests for 24 StemExpress’s confidential documents. Cooksy Decl. ¶¶ _-_, Ex. _. StemExpress repeatedly 25 rebuffed “Sarkis’s” requests until BioMax had executed a nondisclosure agreement. Id. After 26 delaying its consent to do so, “Tennenbaum” finally signed the agreement for BioMax. Dyer 27 Decl. ¶ _, Ex. _. Thereafter, on June 25, StemExpress provided “Sarkis” with the requested 28 confidential documents, and that was the last communication with “Sarkis,” “Tennenbaum,” or DM_US 62765281-2.097549.0011 -8EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 anyone else on behalf of “BioMax.” Cooksy Decl. ¶ _, Ex. _; Dyer Decl. ¶ _; Barr Decl. ¶ _. 2 Based on the series of video releases made by CMP starting on July 14, CMP’s admission 3 of having “hundreds of hours” of undercover video footage, the fact that the Planned Parenthood 4 doctors were questioned by the same people that pretended to be representatives of “BioMax” 5 using the same line of questions during the May 22 meeting with Dyer, Barr, and Cooksy, the fact 6 that Daleiden was involved in all three meetings posing as a representative for a fake biomedical 7 company, and looking back in hindsight at the strange behavior exhibited by “Sarkis” and 8 “Tennenbaum” during the May 22 meeting, Dyer, Barr, and Cooksy each believe that Daleiden 9 and/or the woman posing as “Tennenbaum” recorded their private conversation on May 22 and 10 imminently intend to release the video of their meeting on CMP’s website. Dyer Decl. ¶¶ _-_; 11 Barr Decl. ¶ _-_; Cooksy Decl. ¶ _-_. 12 IV. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY ORDER A. Legal Standard Applicable to Temporary Restraining Orders Injunctive relief is generally available when it appears that: (1) “the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually”; (2) “the commission or continuance of some act during the litigation would produce … great or irreparable injury”; (3) “that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action”; (4) “When pecuniary compensation would not afford adequate relief”; and (5) “Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.” Civ. Proc. Code § 526(a)(1)-(5). To obtain a temporary restraining order, an applicant must satisfy two statutory requirements: (1) “that great or irreparable injury will result to the applicant before the matter can be heard on notice”; and (2) that the opposing party is informed about the time and place of the application. Civ. Proc. Code § 527(c)(1)-(2). In deciding whether to issue a temporary restraining order, courts must assess “two interrelated factors”: (1) “the likelihood that the DM_US 62765281-2.097549.0011 -9- EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 plaintiff will prevail on the merits at trial”; and (2) “the interim harm that the plaintiff is likely to 2 sustain if the [restraining order] were denied as compared to the harm that the defendant is likely 3 to suffer if the [order] were issued.” Church of Christ in Hollywood v. Superior Court, 99 Cal. 4 App. 4th 1244, 1251 (2002) (quoting IT Corp. v. County of Imperial, 35 Cal. 3d 63, 69-70 5 (1983)); see also Fleishman v. Superior Court, 102 Cal. App. 4th 350, 355-356 (2002). 6 Courts evaluate these two factors on a continuum such that “[t]he more likely it is that 7 plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the 8 injunction does not issue.” Right Site Coalition v. Los Angeles Unified School Dist., 160 Cal. 9 App. 4th 336, 338-339 (2008). Furthermore, “if the party seeking the injunction can make a 10 sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to 11 issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in 12 his favor.” Common Cause v. Board of Supervisors, 49 Cal. 3d 432, 441-442 (1989). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiffs Will Likely Prevail On Their Claims For Violation Of The Privacy Act And Receipt Of Stolen Property/Unfair Competition 1. Violation Of The Invasion Of Privacy Act (Pen. Code § 632) California’s Invasion of Privacy Act criminalizes the recording of a “confidential communication” without the consent of all parties to the communication. Pen. Code § 632(a). The Act is designed to effectuate California’s strong public policy interest in protecting the privacy of its citizens. See Flanagan v. Flanagan, 27 Cal. 4th 766, 775 (2002). To that end, “courts are required to liberally construe section 632 to effectuate [this] important public policy.” Kight v. CashCall, Inc., 231 Cal. App. 4th 112, 130 (2014). The Act specifically authorizes any person injured by a violation of Section 632 to bring “an action to enjoin and restrain any violation.” Pen. Code § 637.2(b) (emphasis added). The Act defines a “confidential communication” as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering … or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Pen. Code § 632(c). The Supreme Court has DM_US 62765281-2.097549.0011 - 10 - EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 interpreted this definition to mean that “a conversation is confidential if a party to that 2 conversation has an objectively reasonable expectation that the conversation is not being 3 overheard or recorded.” Flanagan, 27 Cal. 4th at 768 (citing Coulter v. Bank of Am., 28 Cal. 4 App. 4th 923, 929 (1994) and Frio v. Superior Court, 203 Cal. App. 3d 1480, 1488 (1988)). 5 Whether a party had an objectively reasonable expectation that a communication is not 6 being overheard or recorded depends on the circumstances surrounding the communication. 7 Kight, 231 Cal. App. 4th at 133; see also Coulter, 28 Cal. App. at 929. Relevant circumstances 8 include the content of the communication, the location of the communication, actions taken by 9 the party to maintain the confidentiality of the communication, the identity of the party recording 10 the communication, and the party’s awareness of the recording. See, e.g., Coulter, 28 Cal. App. 11 4th at 929; Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 169 (2003); Cuviello v. 12 Feld Entm’t, Inc., 304 F.R.D. 585, 591 (N.D. Cal. 2015); Bernstein v. United Collection Bureau. 13 Inc., No. 13-cv-01251, 2013 U.S. Dist. LEXIS 158451, at *9 (S.D. Cal. Nov. 5, 2013). 14 Consistent with this approach, courts have held that the mere presence of others or the fact 15 that the communication occurred in a public setting does not automatically exclude it from 16 protection under the Act. See Lieberman, 110 Cal. App. 4th at 169 (“The presence of others does 17 not necessarily make an expectation of privacy objectively unreasonable ….”); Cuviello, 304 18 F.R.D. at 591. Indeed, when a communication occurs in a public setting or in the presence of 19 others, a court still must evaluate the totality of the circumstances surrounding the 20 communication. Turnbull v. ABC, No. 03-3554, 2004 U.S. Dist. LEXIS 24351, at *26-34 (C.D. 21 Cal. Aug. 19, 2004) (evaluating communication occurring during a casting workshop); Cuviello, 22 304 F.R.D. at 591 (evaluating communication occurring on a public sidewalk); Wilkins v. Nat’l 23 Broad. Co., 71 Cal. App. 4th 1066 (1999) (evaluating communication occurring at a restaurant); 24 Shulman v. Grp. W Productions, Inc., 18 Cal. 4th 200, 235 (1998) (evaluating communication 25 occurring during a rescue effort); Vera v. O’Keefe, No. 10-cv-1422, 2012 U.S. Dist. LEXIS 26 112406, *13-15 (S.D. Cal. Aug. 9, 2012) (evaluating communication occurring in the office of 27 community service organization); Lieberman, 110 Cal. App. 4th at 169 (evaluating 28 communication occurring in the presence of an undisclosed third party). As the district court DM_US 62765281-2.097549.0011 - 11 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 noted in Turnbull, if every public conversation was automatically excluded from protection, “it 2 would vitiate the statute.” 2004 U.S. Dist. LEXIS 24351, at *26.3 LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 3 Plaintiffs will likely prevail in establishing that Defendants violated Section 632 of the 4 Act. 5 “Tennenbaum” recorded their conversation with Dyer, Cooksy, and Barr on May 22. Dyer Decl. 6 ¶¶ _-_; Cooksy Decl. ¶¶ _-_; Barr Decl. ¶¶ _-__; Jones Decl. ¶¶ _-_, Exs. _-_. Indeed, the entire 7 meeting fits squarely within the modus operandi that Defendants have displayed through the 8 release of the other “undercover videos” published on CMP’s website. Jones Decl. ¶ _, Ex. _. 9 Second, the May 22 conversation was “confidential” for purposes of the Act. Although the May 10 22 conversation occurred in a public restaurant, that fact alone is not legally dispositive. See 11 Lieberman, 110 Cal. App. 4th at 169. At Dyer’s request, the meeting was held at time when the 12 restaurant would not be crowded (4:30 p.m.), the restaurant was in fact not crowded, they were 13 seated in a remote area of the restaurant, Dyer would stop the conversation anytime a staff 14 member approached the table, and Dyer instructed “Tennenbaum” to lower her voice when she 15 suspected that it might be possible that “Tennenbaum” might be overheard. Dyer Decl. ¶¶ _-_; 16 Cooksy Decl. ¶¶ _-_; Barr Decl. ¶¶ _-__. Furthermore, Dyer, Cooksy, and Barr all considered the 17 conversation to be private, they did not believe that they were being overheard or recorded, they 18 3 19 20 21 22 23 24 25 26 27 28 First, the weight of the evidence provides a strong inference that Daleiden and In Turnbull, the court identified a number of hypothetical scenarios where public conversations would still be considered “confidential” under the Act: By way of example, a recovering alcoholic in an “AA” meeting, or a participant in an anger management class, might reasonably expect her communications to other class members to be kept private. Customarily, in law school and undergraduate university lectures, students must ask for the instructor’s permission prior to recording university lectures. Closer to the point, if a group of aspiring authors decided to attend a seminar with a writer in residence at a local university in order to obtain feedback and criticism regarding unfinished work, it would probably be reasonable for them to assume their activities, readings, and the instructor’s comments, were not being overheard by a person who was not similarly situated; let alone being recorded by a journalist. Similarly, if a company executive or attorney attended night classes in graphic design with a mind to switch careers at a later date, she might reasonably expect her attendance was not being photographically memorialized or beamed to the living room of every house in America. Moreover, an aspiring artist or graphic designer might expect that any experimental work produced purely for commentary, or as an assignment for class, would not be recorded or disseminated beyond the seminar; let alone broadcast on national television. Otherwise, the student probably would not produce the work for critique. 2004 U.S. Dist. LEXIS 24351, at *33-34. DM_US 62765281-2.097549.0011 - 12 - EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 did not consent to being recorded, and they would not have participated in the meeting if they had 2 known that they were going to be recorded. Dyer Decl. ¶¶ _-_; Cooksy Decl. ¶¶ _-_; Barr Decl. 3 ¶¶ _-__. Under these facts and a liberal construction of the Act, the Court can and should 4 conclude that Dyer, Cooksy, and Barr each had “an objectively reasonable expectation that the 5 conversation is not being overheard or recorded.” Flanagan, 27 Cal. 4th at 768. Therefore, the 6 May 22 conversation was “confidential” within meaning of the Invasion of Privacy Act, and 7 Defendants’ non-consensual recording of the conversation constitutes a violation of the statute. 8 Plaintiffs are entitled to all available relief under Section 637.2, including an injunction. LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 9 2. Receipt Of Stolen Property (Pen. Code § 496) & Unfair Competition 10 California law criminalizes the knowing receipt of stolen property. Pen. Code § 496(a). It 11 also authorizes victims to bring a civil action seeking three times the amount of actual damages as 12 well as reasonable attorneys’ fees and costs. 13 “property” includes proprietary business documents and trade secrets. See People v. Parker, 217 14 Cal. App. 2d 422 (1963) (confidential advance telephone directory supplements, listing new 15 subscribers, are property); People v. Gopal, 171 Cal. App. 3d 524 (1985) (trade secrets). A 16 criminal conviction is not a prerequisite to suit. See Bell v. Feibush, 212 Cal. App. 4th 1041, 17 1046 (2013). In addition, California’s Unfair Competition Law (“UCL”) prohibits “unlawful” 18 business practices, and such practices can be enjoined. Bus. & Prof. Code §§ 17200, 17203. Id. § 496(c). For purposes of this section, 19 Plaintiffs will probably prevail in establishing that Defendants violated Penal Code § 496, 20 and consequently the UCL. First, Defendants clearly possess confidential documents belonging 21 to StemExpress. Jones Decl. ¶¶ _-_, Exs. _-_; Dyer Decl. ¶¶ _-_. Certain of these documents 22 (the January 2013 fax; the March 2013 email; the January 2013 bonus policy) clearly contain 23 highly confidential and sensitive information, including the identities, locations, contact 24 information, and specimen orders of StemExpress’s research clients. 25 the weight of the evidence provides a strong inference that these documents were acquired from a 26 former employee in violation of her express confidentiality and nondisclosure obligations. Id. ¶¶ 27 _-_, Exs. _-_. Accordingly, Defendants have no legal right to possess, let alone publish, the 28 above-identified documents. Therefore, they are in violation of Penal Code § 496, the UCL, and DM_US 62765281-2.097549.0011 - 13 - Dyer Decl. ¶ _. Second, EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 subject to injunctive relief. 2 C. Plaintiffs Face Irreparable Harm Unless Injunctive Relief Is Granted 3 The central goal of provisional injunctive relief is to preserve the status quo and to avoid 4 irreparable harm. See Dodge, Warren & Peters Ins. Services, Inc. v. Riley, 105 Cal. App. 4th 5 1414, 1418 (2003). 6 “continuing character” and (b) harms in which monetary compensation would not afford adequate 7 relief or it would be extremely difficult to ascertain the amount that would afford adequate relief. 8 See People ex rel. Gow v. Mitchell Brothers’ Santa Ana Theater, 118 Cal. App. 3d 863, 870-871 9 (1981); Wind v. Herbert, 186 Cal. App. 2d 276, 285 (1960). Examples of such irreparable harm 10 include the continuous publication of injurious media (Gow, 118 Cal. App. 3d at 870-871), 11 damage to reputation (Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 520 (9th Cir. 12 1984)), loss of customer goodwill (MCA Records, Inc. v. Newton-John, 90 Cal. App. 3d 18, 23 13 (1979)), and loss of profits (id.). Irreparable harm includes both (a) harms arising from wrongs of a 14 Plaintiffs face irreparable harm from Defendants’ illegal conduct on several levels. First 15 and foremost, if Defendants release the illegally-recorded video of the May 22 confidential 16 conversation on CMP’s website, it will be distributed to a staggeringly-broad audience, especially 17 considering how much attention CMP’s campaign has already garnered from the news media, 18 social media, legislators, and now law enforcement. 19 conversation will be broadcasted to the entire world. Given the permanence of information 20 posted on the internet, that moment can never be undone. In other words, there is no way to 21 “unring the bell” when Defendants publish the video. The threat of Defendants committing this 22 permanent act is – by their own admission – imminent, and possibly as soon as Tuesday, July 28, 23 at 8:00 a.m. ET. Jones Decl. ¶ _, Ex. _. The fundamental purpose of California’s Invasion of 24 Privacy Act is to protect the privacy interests of its citizens by outlawing the surreptitious 25 recording of private conversations. The Act expressly grants victims the right to obtain seek 26 injunctive relief to minimize and remedy violations of the statute. 27 Defendants’ imminent release of the illegally-recorded video supplies the irreparable harm 28 necessary to justify a temporary restraining order prohibiting Defendants publishing or otherwise DM_US 62765281-2.097549.0011 - 14 - In that instant, Plaintiffs’ private Pen. Code. § 637.2(c). EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 disseminating the video and any other method by which the May 22 meeting may have been 2 recorded. 3 Second, in addition to the “privacy” harm associated with Defendants publicly distributing 4 an illegal recording of Plaintiffs’ private conversation, Plaintiffs also face a genuine safety risk if 5 the video is released. Dyer Decl. ¶¶ _-_. Indeed, even CMP’s limited exposure of StemExpress’s 6 affiliation with Planned Parenthood over the past few weeks has led to several threats of death 7 and other physical violence to Dyer, which has prompted its own criminal investigation and 8 caused her to take personal security measures. Id. ¶ _. The additional attention a misleadingly- 9 edited video will draw to StemExpress will undoubtedly amplify the risk that such threats will 10 increase in both volume and intensity. Id. Of particular concern is that the video will not only 11 disclose the identities of the StemExpress employees who participated in the meeting, it will 12 expose their faces, such that they can be easily recognized in public. Id. The legitimate threat 13 posed by this increased safety risk alone constitutes sufficient irreparable harm to issue the 14 requested injunctive relief. 15 Finally, StemExpress also faces irreparable harm from Defendants’ release of what is 16 likely to be a misleadingly-edited version of the May 22 meeting as well as their publication (and 17 continued publication) of StemExpress’ confidential documents. 18 StemExpress’s confidential documents that identify the names and orders of its medical research 19 clients could jeopardize its contractual relationships with those clients. Dyer Decl. ¶ _. Second, 20 at least one procurement facility has suspended its collection activities out of caution and fear of 21 CMP’s association with violent activist groups and harassment tactics – all of which CMP is 22 proud to admit on its website and to its followers. Id. Third, one of StemExpress’s clients has 23 also suspended work with StemExpress due to the national attention CMP has created with its 24 malicious and harmful activities. Id. Fourth, StemExpress has lost blood and bone marrow 25 donors that are crucial to our business. Id. Fifth, StemExpress has been the subject of several 26 congressional inquiries concerning its procurement practices related to fetal tissue. Id. The 27 congressional hearings are specifically related to misrepresented, false, and intentionally 28 misleading videos that CMP has released. Id. These problems will only be exacerbated if DM_US 62765281-2.097549.0011 - 15 - First, the publication of EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 1 Defendants proceed as planned. Id. 2 Any or all of these irreparable injuries will occur unless Defendants are temporarily 3 restrained and preliminarily enjoined from releasing the video and publishing StemExpress’s 4 confidential documents. 5 D. The Balance of Harms Weighs Significantly In Plaintiffs’ Favor 6 As discussed above, Plaintiffs face serious, imminent, and irreparable harm. In contrast to 7 the grave injury facing Plaintiffs, Defendants will suffer little, if any, harm if the requested relief 8 is granted. An injunction will not have any monetary impact on any of the Defendants, as CMP 9 purports to be a non-profit organization, BioMax is a fake company, and Daleiden professes to 10 have committed these trespasses as a “citizen journalist.” Jones Decl. ¶ _, Ex. _, p. 1 [CMP 11 “About Us” page]. Although Defendants will undoubtedly claim that the injunction represents a 12 “suppression of free speech” (see id. ¶ _, Ex. _, p. 1 [CMP “Blog” page]), their First Amendment 13 rights are not impinged here at all. Plaintiffs respect Defendants’ right to freedom of speech. 14 They are free to engage in whatever lawful public speech they want concerning the topic of 15 abortion or the procurement of fetal tissue for research purposes. But the First Amendment does 16 not provide carte blanche to trample the privacy rights and confidentiality obligations of the 17 citizens of this state, which is precisely the situation here. 18 significantly in Plaintiffs’ favor. The balance of harms weighs 19 E. The Court Should Plaintiffs To Conduct Expedited Discovery 20 For good cause, courts may allow parties to propound discovery before the expiration of 21 the statutory “holds” triggered by the filing of an action and to shorten the default statutory notice 22 periods. See Civ. Proc. Code § 2025.201(b) (plaintiff may serve deposition notices before 23 expiration of discovery hold), § 2031.020(d) (plaintiff may serve document requests before 24 expiration of discovery hold), § 2025.201(b) (court may shorten time to schedule deposition), § 25 2031.030(b)(2) (court may shorten time to respond to document request). 26 Regardless of whether the Court grants the requested temporary restraining order, the 27 Court should issue an order permitting Plaintiffs to conduct limited discovery on an expedited 28 basis for the purpose of identifying the following limited subjects: (i) all recordings of the May DM_US 62765281-2.097549.0011 - 16 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY 1 22 meeting; (ii) the extent to which any such recording has already been disseminated, if at all; 2 (iii) all StemExpress documents that are in Defendants’ possession; (iv) the manner in which 3 Defendants came to possess such documents; and (v) the extent to which these documents have 4 already been disseminated, if at all. To pursue these limited topics, Plaintiffs request an order 5 allowing to conduct them to conduct (a) no more than 5 depositions to be noticed on 3 days and 6 completed no later than 5 court days before any hearing on the Order to Show Cause re: 7 Preliminary Injunction and (b) no more than 10 document requests to which written responses 8 and responsive documents are due within 7 calendar days from the date on which they are served. 9 As demonstrated in this application good cause exists for this expedited discovery. LOS ANGELES ATTORNEYS AT LAW M C D E R M O T T W I L L & E M E R Y LLP 10 V. CONCLUSION 11 For the foregoing reasons, Plaintiffs respectfully request that the Court grant this ex parte 12 application and enter the requested temporary restraining order, order to show cause re: 13 preliminary injunction, and expedited discovery order. 14 15 Dated: July 26, 2015 McDERMOTT WILL & EMERY LLP 16 By: 17 CHARLES E. WEIR Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 DM_US 62765281-2.097549.0011 - 17 - EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY