"IfCatherine W. Short, Esq. SBN 117442 LIFE LEGAL DEFENSE FOUNDATION Post Of?ce Box 1313 Ojai, California 93024-1313 Tel: (707) 337-6880; Fax: (805) 640-1940 E?Mail: ai @earthlinknet Charles S. LiMandri, SBN 110841 Teresa L. Mendoza, SBN 185820 Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480 FREEDOM OF CON SCIENCE DEFENSE FUND Post Of?ce Box 9520 Rancho Santa Fe, CA 92067 Tel: (858) 759-9948; Fax: (858) 759?9938 E-Mail: cslimandri@limandri.com Attorneys for Defendants THE CENTER FOR MEDICAL PROGRESS, DAVID DALEIDEN, and BIOMAX PROCUREMENT SERVICES, LLC Sugg AUG 10 2015 Sherri R. Carter, Executive SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DIVISION STEMEXPRESS, LLC and CATHERINE DYER, Plaintiffs, vs. THE CENTER FOR MEDICAL BIOMAX PROCUREMENT SERVICES, LLC, DAVID DALEIDEN (aka DOE 1 (aka and DOES 2 through 100, inclusive, Defendants. 1 Case No. BC589145 DECLARATION OF DAVID DALEIDEN IN SUPPORT OF DEFENDAN EX PARTE APPLICATION TO DISSOLVE THE TEMPORARY RESTRAININ ORDER AND ORDER TO SHOW CAUSE Date: August 10,2015 Time: 8:30am Dept: 86 Judge: Hon. Joanne O?Donnell Complaint Filed: Trial Date: July 27, 2015 None Set DECLARATION OF DAVID DALEIDEN IN SUPPORT OF EX PARTE APPLICATION TO DISSOLVE THE TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE .5. if. El: "ix r5'31": "if. ill ALAN DAVID DALEIDEN, declare as follows: 1. I am a named defendant in this action. I have personal knowledge of the facts set forth in this declaration and if called upon as a witness, I could and would testify competently to them. 2. I am an investigative journalist and the founder and director of Center for Medical Progress CMP is a California not-for-profit corporation formed for the purpose of monitoring and reporting on medical ethics and advances. To this end, CMP educates and informs the public about the ethical issues surrounding certain practices relating to biotechnology and research, and thereby serves as a catalyst for reform of unethical practices. CMP carries out its work by means of investigative journalism that complies with all applicable laws. 3. For almost three years, I have been investigating fetal tissue and organ procurement practices, and I have learned of mulitiple violations of the law, including violent crimes. In the course of my investigation, I have learned that, in order for fetal tissue and organs to be usable, the fetus cannot be killed with digoxin before the procedure begins. I have also learned, including through ?rst-hand conversations with abortion providers, that abortion providers will alter the procedure to obtain more intact, and thus more valuable, organs and tissues. I have learned, including through ?rst-hand conversations with abortion providers, that some providers will attempt to deliver the fetus intact, including an intact head, in order to procure usable tissue from the head. 4. Through my investigation into procurement practices, which included ?rst-hand conversations with a former procurement technician for StemExpress, Holly O?Donnell, I learned that immediately after an abortion procedure, procurement technicians employed by companies such as StemExpress step in to take over the handling of the tissue, organs, or ?intact cases? to ensure the best preservation of usable material. Because fetuses marked for organ donation are not killed before the procedure begins, and because some of these fetuses are delivered intact, these babies either die or are killed shortly after they are born. I learned from Ms. O?Donnell that StemExpress receives intact fetuses and that sometimes the fetus?s heart is still beating when it is received by the StemExpress technician. 2 DECLARATION OF DAVID DALEIDEN IN SUPPORT OF SPECIAL MOTION TO STRIKE first contacted Ms. O?Donnell in October 2014, after she had stopped working for StemExpress. I did not know that Ms. O?Donnell had signed a confidentiality agreement with StemExpress. I never received any documents from Ms. O?Donnell knowing that they were covered by a con?dentiality I did not pay Ms. O?Donnell or otherwise offer any inducements to her to talk to me or provide documents. She willingly cooperated with my investigation because of her disgust and horror over what StemExpress does and her desire to expose their practices. 6. On the evening of Friday, May 22, 2015, I had a dinner meeting with Catherine Dyer, Kevin Cooksy, and Megan Barr of Stem Express. My purpose was to gather evidence about the procurement practices of StemExpress, including the actual procurement techniques utlilized by procurement technicians. I have been informed that Dyer and Barr work as procurement technicians. Specifically, my intention was to gather evidence that StemExpress and its officers and employees are engaged in various unlawful practices, including illegally buying and selling fetal tissue and organs, and homicide of babies born alive during the abortion procedure. 7. I arrived at the restaurant before Dyer, Cooksy, and Barr and was seated by the hostess at a table in the dining area. Dyer and the others had not arrived yet and did not choose the table. 8. Dyer, Cooksy, and Barr arrived within a few minutes of my arrival. They were seated at the table and we proceeded to have a meeting over dinner that lasted approximately two and a half hours. During that meeting, Dyer spoke for the most part in a normal conversational tone. Dyer?s normal conversational tone was uniformly robust. 9. During that meeting, Dyer gave no sign of concern that others might overhear the conversation. Although the area of the restaurant where we were seated was rather empty when we arrived, nearby booths filled up as the evening progressed, including the booth immediately behind Dyer. Dyer?s tone of voice and volume did not change. 10. Dyer did not make any effort to ensure that restaurant staff would not hear our conversation. When staff came to the table, she made no effort to stop the conversation, whether she or others were speaking. Also, immediately behind where I was sitting, facing Dyer, was a 3 DECLARATION OF DAVID DALEIDEN IN SUPPORT OF SPECIAL MOTION TO STRIKE station with a credit card slider where the waiters and waitresses could print up receipts. Dyer did not pause in her conversation while the staff was working there. 11. At no time did Dyer indicate any concern that we might be overheard or ask anyone at our table to lower his or her voice. On the contrary, at one point, Cooksy told Dyer to lower her voice, because Dyer was speaking without any regard for the fact that people were seated in the booth immediately behind her. Despite Cooksy?s warning, Dyer continued to speak in the same tone and volume. 12. During our conversation, Dyer said that StemExpress?s procurement technician see ?a lot? of intact fetuses at clinic, which intact fetuses are then shipped to their laboratory. 13. During our conversation, Dyer said that she would have a sample supply agreement sent to me. At no time in our conversation did Dyer mention anything about a confidentiality agreement, nor had any confidentiality agreement been discussed before the meeting. The ?rst time a con?dentiality agreement was mentioned in my dealing with anyone at StemExpress was in an e-mail from Cooksy on June 18, 2015, at which time he attached a confidentiality agreement to be signed. By that time, both Cooksy and Barr had sent me other documents from StemExpress. Attached hereto as Exhibit 1 is a true and correct copy of the non-disclosure agreement signed by Defendants. 14. Before filing this litigation, StemExpress never asked me or anyone associated with CMP or BioMax to return any documents. 15. Attached as Exhibit A to Defendants? Motion to File Under Seal, and conditionally offered in support of the present motion, is a DVD with four video clips of the video recording I made of the May 22, 2015 meeting between myself and StemExpress representatives. The clips show: (1) Dyer saying that the Stem Express lab receives ?a lot? of intact fetuses from clinics; (2) Cooksy telling Dyer to lower her voice, but Dyer continuing to speak in a normal tone; (3) restaurant staff at the table with no break in the conversation, in particular Cooksy continues to speak; and (4) restaurant staff at the table with no break in the conversation, in particular Dyer continues to speak. ll/ 4 DECLARATION OF DAVID DALEIDEN IN SUPPORT OF SPECIAL MOTION TO STRIKE declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 9th day of August, 2015, ?242 ML - David Daleiden 5 DECLARATION OF DAVID DALEIDEN IN SUPPORT OF SPECIAL MOTION TO STRIKE Exhibit 1 I I: 11:11 i MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (?Agreement?) effective this day of 2015 (?Effective Date?), is made by and between BioMax Procurement Services, LLC. a alifornia limited liability corporation, with a place of business located at 6444 E. Spring Street, Long Beach, California 90815 (?Company?), and StemExpress LLC, a California Limited Liability Company, with a place of business at 778 Paci?c Street, Placerville, California 95667 (?StemExpress?). Company and StemExpress shall be referred to herein individually as a ?Party? and collectively as the ?Parties.? 1. ?gpose. Company and Stemepress wish to discuss possible opportunities between the Parties related to the procurement and supply of certain human products and related potential research activities (hereinafter the ?Purpose?), In the course of such discussions, it is anticipated that either Party may disclose or deliver to the other Party certain con?dential and/or proprietary materials and/or information. The Parties have entered into this Agreement in order to assure the con?dentiality of such con?dential and/or proprietary materials and/or information in accordance with the terms of this Agreement 2. De?nition. As used in this Agreement, the term ?Con?dential Information? shall mean all con?dential or proprietary materials or information of one Party (the ?Disclosing Party?) disclosed to the other Party (the ?Receiving Party?), either directly or indirectly. Con?dential Information includes, without limitation, information regarding technology, products, product candidates, research and development activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other intellectual property, information learned through observation during visit(s) to the Disclosing Party?s facilities, con?dential or proprietary materials or information of third parties who have disclosed or entrusted the same in con?dence to the Disclosing Party, the content of licenses, the existence, status or content of licensing or collaboration negotiations, the existence, status or content of other agreements with third parties, information regarding facilities and ?nancial and other business information, and including all documents, presentations, infomation, reports, materials, evaluations and copies to the extent incorporating any of the foregoing. In addition, any notes or other work product developed by the Receiving Party containing or based upon the Disclosing Party?s Con?dential Information shall be deemed Con?dential Information and is subject to the same obligations of non-disclosure, non-use and return as Con?dential Information disclosed to the Receiving Party by the Disclosing Party. Con?dential Information shall not, however, include any information which the Receiving Party can establish by competent evidence: is publicly known and generally available in the public domain prior to the time of disclosure by the Disclosing Party to the Receiving Party; becomes publicly known and generally available after disclosure by the Disclosing Party to? the Receiving Party through no wrongful act or default on of the Receiving Party; to) is in the Receiving Party's possession at the time of disclosure other than as a result of a prior con?dential disclosure by the Disclosing Party or another party or the Receiving Party's breach of any legal obligation hereunder; becomes known to the Receiving Party through disclosure by third party sources having no duty of con?dentiality with reSpect to such Con?dential Information, whether to the Disclosing Party or another party, and having the legal right to disclose such Con?dential Information; or CONFIDENTIAL Page 1 of 4 "In?f?f?l? .. . .4. I awn. 35?; urns-wasp? I. f. '13 is independently developed by the Receiving Party without reference to or reliance upon the Con?dential Information. 3. Non-Use and Non-Disclosure of Con?dential Information. The Receiving Party agree: not to use any Con?dential Information for any purpose other than the Purpose or as otherwise approved in writing by the Disclosing Party. The Receiving Party agrees not to disclose any Confidential Information to any third party or to the Receiving Party's employees, except to those employees who have a speci?c need-to-know in order to advise the Receiving Party for the Purpose and who are bound by obligations of con?dentiality and restrictions on use and non-disclosure that cover such Con?dential Information and are at least as stringent as those set forth in this Agreement. The Parties shall secure and safeguard Con?dential Information and shall maintain reasonable procedures to prevent accidental or other loss of any Con?dential Information, using at least the same degree of care for such information as it uses to protect its own proprietary information but in any event no less than reasonable care. 4. Disclosure Reggrr' ed by Law. Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Disclosing Party?s Con?dential Information to the extent required by applicable law, including pursuant to a subpoena or other court order, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure, if possible under the circumstances, and cooperates with the Disclosing Party?s efforts to limit the scope of Con?dential Information to be provided, or to obtain an order protecting its Con?dential Information ?om public disclosure. 5. Ownership of Con?den?al Information. The Receiving Party agrees that the Disclosing Party is and shall remain the exclusive owner of all Con?dential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of such rights to the Receiving Party is granted or implied under this Agreement. 6. No Obligation. The Disclosing Party may, at any time, cease to make further disclosure of its Con?dential Information and the Receiving Party may refuse to accept further disclosure of the Disclosing Party?s Con?dential Information. Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in such Party?s sole discretion, to terminate the discussions contemplated by this Agreement concerning the Purpose. 7. No Warning. ALL CONFIDENTIAL INFORMATION IS PROVIDED NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT TO DISCLOSE SUCH CONFIDENTIAL INFORMATION. 8. Return of Documents. All documents and other tangible objects containing or representing Con?dential Information which have been disclosed or provided by the Disclosing Party to the Receiving Party, and all copies of such Con?dential Information, which are in the possession of the Receiving Party, shall be and remain the property of the Disclosing Party and shall be returned to the Disclosing Party or destroyed, as requested and directed in writing by the Disclosing Party, and any memoranda, notes, reports and the like generated by the Receiving Party which contain or incorporate or are derived from such Con?dential Information shall be destroyed upon the Disclosing Party?s written request; provided, however, that the Receiving Party may retain one (1) copy of such Con?dential Information solely for purposes of ensuring compliance with this Agreement, law and regulation. CONFIDENTIAL Page 2 of 4 a No Licenses. Neither the execution and delivery of this Agreement nor the delivery of any Con?dential Information hereunder shall be construed as granting by implication, estoppel or otherwise, any right in or license under any present or future invention, trade secret, trademark, copyright, or patent, now or hereafter owned or controlled by either 10. 1111.11. This Agreement shall have a term of one (1) year from the Effective Date. Notwithstanding the termination or expiration of this Agreement, the Receiving Party?s obligations of non?disclosure and non-use of Con?dential Information shall continue in effect for a period of ?ve (5) years from the date of expiration or termination of this Agreement 11. Breach. The Receiving Party acknowledges and agrees that the use or disclosure of any Con?dential Information, other than as speci?cally provided for in this Agreement, Without the prior express written consent of the Disclosing Party, shall be considered a breach of this Con?dentiality Agreement and an unauthorized disclosure of such Con?dential Information. 12. Injunctive Relief. The Receiving Party agrees and expressly acknowledges that the disclosure of Con?dential Information in contravention of this Agreement may cause immediate, substantial, and irreparable harm to the Disclosing Party, for which monetary damages may not be a suf?cient remedy. In the event of a breach or threatened breach of this Agreement, the Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief to enforce this Agreement without the need for a bond or to prove harm. 13. No Further Commitment. The disclosure of Con?dential Information shall neither result in any obligation on the part of either - Party to enter into any future agreement. relating to such Con?dential Information nor to undertake any other obligation not set forth in a written agreement signed by the Parties. This Agreement provides only for the handling and protecting of Con?dential Information and shall not be construed as a teaming, joint venture, or any other such arrangement. 14. No Waiver/Severabilig . No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof. nor shall such a waiver constitute a continuing waiver. If any provision or provisions of this Agreement are determined to be unenforceable, the remaining provisions shall stand. The failure of either Party at any time to require performance of any provision hereof shall in no manner affect the right of such Party at a later time to enforce such provision or any other provision of this Agreement. 15. Amendment or Modi?cation. This Agreement sets forth the entire agreement between the Parties, and supersedes all prior agreements, written or oral, between the Parties relating to the subject matter of this Agreement. This Agreement may be modi?ed or amended only by mutual written agreement by both Parties. This Agreement may not be assigned to a third party by either Party without the express, prior written approval of the other Party. CONFHDENTIAL Page 3 of 4' 1 l6. Miscellaneous. This Agreement will be binding upon and inure to the bene?t of the Parties and their respective heirs, successors and assigns; provided, however, that the Receiving Party may not assign the Agreement, or its rights and obligations hereunder, without the prior written consent of the Disclosing Party. This Agreement shall be construed and interpreted in accordance with the laws of the State of California, USA, without giving effect to its con?ict of laws provisions. The parties hereby agree that the . exclusive venue for any diSpute arising under this Agreement or in connection with any breach thereof shall be in the federal or state courts within California and hereby irrevocably consent to the personal jurisdiction of such courts. This Agreement may be executed in one or more counterparts by the Parties by signature of a person having authority to bind the Party, which may be by facsimile signature, each of which when executed and delivered, by facsimile transmission or by mail delivery, will be an original and all of which will constitute but one and the same Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date hereof. BIOMAX PROCUREMENT SERVICES, LLC STEMEXPRESS LLC By: Name: Name: Cate Dyer Titlez' Title: Chief Executive Of?cer Date: 2 2? 15 Date: 6/23/2015 CONFIDENTIAL Page 4 of4 1