Pages 1 - 14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE NATIONAL ABORTION FEDERATION, et al., ) ) ) Plaintiffs, ) v. ) ) CENTER FOR MEDICAL ) PROGRESS, et al., ) ) Defendants. ) ______________________________) NO. 3:15-cv-03522-WHO San Francisco, California Thursday, May 25, 2017 TRANSCRIPT OF OFFICIAL ELECTRONIC SOUND RECORDING OF PROCEEDINGS FTR 4:08 p.m. - 4:28 p.m. = 20 minutes (All counsel appeared by telephone conference) APPEARANCES: For Plaintiffs: BY: For Defendants: BY: Morrison & Foerster 425 Market Street San Francisco, California 94105-2482 DEREK FRANCIS FORAN, ESQ. CHRISTOPHER LEONARD ROBINSON, ESQ. MARC A. HEARRON, ESQ. Law Offices of Charles S. LiMandri P.O. box 9120 Rancho Santa Fe, California 92067 CHARLES SALVATORE LiMANDRI, ESQ. JEFFREY MICHAEL TRISSELL, ESQ. PAUL MICHAEL JONNA, ESQ. (Appearances continued on following page.) Transcribed by: Leo T. Mankiewicz, Transcriber leomank@gmail.com (415) 722-7045 APPEARANCES: (cont.) For Defendants: BY: BY: BY: For Defendant Newman: BY: Life Legal Defense Foundation P.O. Box 1313 Ojai, California 93024-1313 CATHERINE WYNNE SHORT, ESQ. Thomas More Society 19 S. LaSalle Street, Suite 603 Chicago, Illinois 60603 THOMAS LEONARD BREJCHA, JR., ESQ. THOMAS OLP, ESQ. ANDREW M. BATH, ESQ. Brown Brown LLC 2027 Dodge Street, Suite 501 Omaha, Nebraska 68102 MATTHEW F. HEFFRON, ESQ. American Center for Law and Justice 3001 Plymouth Road, Suite 203 Ann Arbor, Michigan 48105 ERIK MICHAEL ZIMMERMAN, ESQ. 3 1 Thursday, May 25, 2017 2 3 4:08 p.m. (Transcriber's Note: Due to counsel's failure to state their 4 name when speaking, certain speaker identifications were 5 impossible to ascertain.) 6 ---o0o--- 7 P R O C E E D I N G S 8 9 10 THE COURT: Good afternoon, everybody. This is Judge Orrick. MR. LiMANDRI: Good afternoon, your Honor. 11 Attorneys Charles LiMandri and Paul Jonna, Jeff Trissell 12 representing Biomax and CMP, and I think the rest of the civil 13 defense team is on the line, as well. 14 THE COURT: All right. I have a record that for the 15 plaintiff Mr. Foran, Mr. Robinson and Mr. Hearron are on the 16 call, and that Ms. Short, Mr. Brejcha, Mr. Olp, Mr. Bath -- 17 UNIDENTIFIED SPEAKER: 18 THE COURT: 19 Bath. -- Bath, mr. LiMandri, Mr. Heffron, Mr. Trissell, Mr. Jonna and Mr. Zimmerman are on the call. 20 Is anybody else on the call? 21 UNIDENTIFIED SPEAKER: 22 Thomas More lawyers on the call. 23 THE COURT: 24 UNIDENTIFIED SPEAKER: 25 Okay. Yes, your Honor, there's some That's fine. The clerk has the names. They haven't appeared, but they may appear later. 4 1 2 3 4 You read the names. UNIDENTIFIED SPEAKER: Those are the people. THE COURT: All right, and are -- and is anybody from Steve Cooley & Associates on the call? 5 (No response.) 6 I take that as a no. 7 MS. SHORT: No, he's not, your Honor. 8 THE COURT: All right, was he notified? 9 MS. SHORT: He was notified, yes, your Honor. Is Mr. Daleiden on the call? He 10 was -- it was on advice of his criminal defense counsel that he 11 was advised not to -- because of the ongoing criminal 12 proceedings in the San Francisco Superior Court, he was advised 13 not to join the call. 14 THE COURT: 15 themselves not to join the call? 16 MS. SHORT: 17 All right, and did they advise I -- yeah, I never spoke to Mr. Cooley. I understood that Mr. Ferreira was not joining. 18 THE COURT: All right. 19 MS. SHORT: I just -- (indistinct) -- attorney 20 21 communication with him at all. THE COURT: Okay. So the lawyers on this call know 22 that I entered a preliminary injunction on February 5th, 2016, 23 which says pending a final judgment, defendants and those 24 individuals who gained access to NAF's 2014 and 2015 annual 25 meetings using aliases and acting with CMP are restrained and 5 1 enjoined from publishing or otherwise disclosing to any third 2 party any video, audio, photographic or other recordings taken, 3 or any confidential information learned at any NAF annual 4 meetings, publish or otherwise disclosing to any third party 5 the dates or locations of any future NAF meetings, and 6 publishing or otherwise disclosing to any third party the names 7 or addresses of any NAF members learned at any NAF meetings. 8 I received a letter this morning from counsel for 9 NAF which says that Mr. Daleiden's counsel, Steve Cooley and 10 Brentford J. Ferreira of Steve Cooley & Associates, have 11 embedded on their website approximately a three-minute video 12 containing several clips, all or substantially all of which 13 were taken at NAF's annual meetings and covered by the Court's 14 order. 15 The same web page also discloses the name of 14 16 individuals who attended NAF's meetings and who are identified 17 as Does in the criminal case, 11 of whom are NAF members, and 18 that the website also contains the link to a URL that publishes 19 several hours of videos of these individuals taken at NAF's 20 annual meetings, all covered by the Court's order, and that in 21 addition, Mr. Daleiden's counsel has also posted a YouTube link 22 that appears to publish all 504 hours of video covered by the 23 Court's preliminary injunction. 24 25 And if the criminal counsel were on the phone, as I requested, I would have asked him whether that's true. 6 1 They're not on the phone. 2 I ordered, on the phone, I would ask him the same question, and 3 so I guess Ms. Short, I ask you, is that true? 4 MS. SHORT: If Mr. Daleiden was here, as That -- that -- what, I understand that, 5 I went to the same website, yes, there are or were videos on 6 the website, and there were the names of the Does on the 7 website, and there were -- well, I guess that's the two things, 8 the videos and the Doe defendants -- excuse me -- Doe 9 complainants in the criminal complaint. 10 THE COURT: All right. Well, so Mr. Daleiden 11 happens to be covered by this order, as do any third parties, 12 and as we have his lawyer on the call, I am ordering that all 13 of those things that are listed -- that I've just listed and 14 that are listed in the letter, be taken down within the next 15 15 minutes, if they haven't been taken down already. 16 And let me ask Mr. Foran or anybody for the 17 plaintiffs whether they have any additional information to 18 share. 19 MR. FORAN: Yes, thank you, your Honor. Just very 20 briefly, obviously, we have to act very quickly this morning. 21 We gave the Court the best information we had at the time. 22 Court's -- basically, the recitation remains accurate, with one 23 exception, and that is that the second URL link, that URL link 24 links to a YouTube playlist that contains 337 videos. 25 client has done the best job it can under the circumstances to The Our 7 1 determine the total number of hours disclosed and its best 2 estimate right now is 150. 3 So I wanted to make sure that I clarified that for 4 the Court, all of which are covered by the Court's preliminary 5 injunction order. 6 The other point that I wanted to make was, it is the 7 case, as far as we know, that it is the Center for Medical 8 Progress that are publishing these materials, and we didn't 9 quite understand that this morning. When you click on these 10 links, you're directed to a YouTube playlist, and you can see 11 on the playlist that the publisher of these videos is the 12 Center for Medical Progress. 13 Apparently, the way they did it was, they published 14 the videos on their own website, but they unlisted them, so if 15 you go on the Center for Medical Progress' own YouTube website, 16 I don't see these videos, but if you follow the URL links that 17 Mr. Daleiden's lawyers published publicly, anybody in the world 18 can access these materials, and they're being published by the 19 Center for Medical Progress right now. 20 21 22 THE COURT: Is there anybody from the defense who has some explanation for this? MS. SHORT: Your Honor, actually, I did want to 23 clarify, if I might, something about your order, about the list 24 of the Doe complainants. 25 That is not something that is generated from, by or 8 1 whatever, from NAF. 2 understanding, came from the Attorney General's office and was 3 given to defense counsel. 4 totally separate from Mr. Daleiden. That is something that came -- my And so its origins and vector are 5 MR. FORAN: Your Honor, if I could briefly respond? 6 THE COURT: Go ahead. 7 MR. FORAN: Obviously, it's not totally separate 8 from Mr. Daleiden because that list was generated from the 9 tapes that the California Attorney General reviewed in order to 10 put their complaint together, and it is nevertheless the case 11 that Mr. Daleiden and anybody acting on his behalf continues to 12 be enjoined from publishing the names of individuals, of NAF 13 members, and that is exactly what his lawyer is doing on his 14 website right now. 15 I would also ask the Court -- this is a pretty 16 flagrant and gross violation, as far as we're concerned. 17 not exaggerating when I say I have been on the phone today with 18 people in tears, our client is on high security alert, and it 19 simply cannot be the case that these defendants are continued 20 to mount this campaign against my client and its members. 21 I am I would ask the Court for an order, and we 22 appreciate the takedown order, but this has got to have some 23 teeth, either significant financial penalties and/or an order 24 of imprisonment if this defendant does not comply with this 25 Court's orders. 9 1 MS. SHORT: Your Honor, may I respond? 2 THE COURT: Go ahead. 3 MS. SHORT: First of all, the videos are currently 4 down, (indistinct). 5 of names, again, that your order was for names learned at any 6 NAF meeting. 7 the context of the criminal prosecution where Mr. Daleiden is 8 being charged with 15 felony counts on behalf of named Doe -- 9 or unnamed Does, and the Attorney General chose to prosecute 10 this, chose to proceed in that way, and chose then to provide 11 those names. 12 Secondly, as far as going back to the list This is -- again, this information is coming in This totally -- this is not information that is 13 coming through Mr. Daleiden, and so I don't see how the Court 14 can order -- and also, I'm sorry, actually, let me turn to 15 another basic point, which is, this is Mr. Ferreira's and 16 Mr. Cooley's website. 17 them to take down anything, but in any event, those are names 18 that were provided to them by the Attorney General. 19 THE COURT: I mean, we are not in a position to tell All right, well, in the way that I read 20 this order, those names are covered under sub 3, the 21 information that is coming to -- through Mr. Daleiden, who is 22 the client and directs his counsel, is, in my view, a flagrant 23 violation of this Court's order, and if it is correct that this 24 is all coming through CMP, then woe is going to be to the 25 people who are involved in this. 10 1 The types of sanctions that are available include 2 fines and monetary sanctions, censures of the people who are 3 involved, including the lawyers, and attorney discipline, 4 including the lawyers, including the criminal lawyers. 5 And so what I'm going to do is I'm going set an 6 order to show cause, and I think there is evidence that needs 7 to be provided in order to assure that everybody gets their 8 process. 9 So Mr. Foran, how quickly will you be in a position 10 to file a -- documents in support of contempt or other 11 sanctions? 12 MR. FORAN: Your Honor, we can do it on any schedule 13 that the Court orders us to. 14 And if we take a takedown order today that has some teeth, I'd 15 ask for a couple of days just so we can consider the types of 16 remedies that we want to seek here. 17 THE COURT: We're on the footing to do so. So maybe early next week. All right, well, let's say that you will 18 file, by the 31st of May, any documents or other evidence in 19 support of a finding of contempt; that the defendants will 20 respond by the 7th. 21 2:00 p.m. 22 and Mr. Ferreira with any documents that are appropriate. 23 24 25 We'll have a hearing on the 14th at And I suggest that, Mr. Foran, you serve Mr. Cooley I just have to tell you that I find this shocking, and I am quite amazed with the lawyers, quite amazed. UNIDENTIFIED SPEAKER: I'm not sure what lawyers 11 1 you're referring to -- 2 THE COURT: 3 Mr. Foran, what is -- when you say an order with Mr. Foran -- excuse me. 4 teeth, besides the order to show cause, are you suggesting 5 something else? 6 7 MR. FORAN: order, your Honor -- 8 9 I'm asking for an immediate takedown THE COURT: Yes, that's -- I've already given that, but besides those two things? 10 MR. FORAN: Some kind of penalties, either monetary 11 or defer to the Court on what types of penalties here, but 12 this -- look, this is shocking from our perspective, it's 13 outrageous, it's already a gross violation of the Court's 14 order. 15 his criminal counsel are going to comply with the takedown 16 order. 17 some kind for noncompliance, maybe on a daily basis, until they 18 come into -- 19 We have no confidence whatsoever that Mr. Daleiden or So we would like to see some significant penalties of THE COURT: Thank you. I think we need to establish 20 some facts before that happens, but the takedown order and the 21 order to show cause -- now, was there some -- will be in effect 22 now, and I accept what Ms. Short represents, that everything 23 has been taken down, but just to make clear, it better be, 24 within the next 15 minutes. 25 MS. SHORT: Oh, your Honor -- I beg your pardon, 12 1 your Honor. 2 that the videos were taken down by YouTube, so we are in a -- 3 well -- so I don't want you to misunderstand and think that 4 I was representing to you that Mr. Daleiden had taken them down 5 or his (indistinct) had taken them down or something like that. 6 I do not want to mislead the Court about that, THE COURT: Well, I suggest that Mr. Daleiden be 7 told by his lawyer that they need to be taken down immediately, 8 and that he tell his lawyers, all of them throughout the world, 9 that this has to stop. 10 11 12 Now, is there anything else that any of the defendants wanted to say, defendants' counsel? MR. LiMANDRI: Only that -- attorney Charles 13 LiMandri representing CMP -- to the extent that there's any 14 impression that the civil attorneys were aware or part of any 15 desire or effort to violate the court order, I'm hearing about 16 all of this for the first time today, and I didn't want the 17 impression to be given that there's some kind of conspiracy or 18 collusion going on here. 19 Mr. Daleiden is being represented by criminal 20 counsel at (indistinct), they're doing what is in his best 21 interests with respect to the criminal action, but the civil 22 counsel can't control them. 23 everything the Court said promptly to them and to Mr. Daleiden, 24 but I just felt it necessary to bring to the attention of the 25 Court that the civil counsel are not doing anything to try to But of course, we will convey 13 1 violate any court orders here, and we'll do what we can to 2 comply with court orders. 3 THE COURT: Mr. Daleiden better be well advised by 4 his lawyers, regardless, that he is obligated to follow the 5 Court's orders and not try to skate around them and cause real 6 harm to human beings, and to himself, as it will turn out, for 7 his failure to follow the Court's orders. 8 All right, is there anything further? 9 MR. FORAN: 10 Not from the National Abortion Federation, your Honor. Thank you for your time. 11 MS. SHORT: Um -- 12 THE COURT: Yes, Ms. Short? 13 MS. SHORT: Well, again, I'm still struggling with 14 the issue of the names, because I don't -- I'm struggling -- 15 well, so I -- you are instructing me to -- 16 THE COURT: You may litigate that if you'd like, and 17 you can explain to me how it is that those names don't actually 18 come directly from the action that your client perpetrated with 19 respect to learning them at the NAF annual meetings, and the 20 fact that the State Attorney General may have had -- may be 21 pursuing criminal proceedings and using, in the criminal 22 proceedings, the tapes and other information that was developed 23 by your clients during this -- the 2014 and 2015 annual 24 meetings, that doesn't give them an independent right to 25 violate this order. 14 1 That's my view, but maybe you'll be able to persuade 2 me to the contrary in three weeks, but in the meantime, I hope 3 that my order was clear. 4 MS. SHORT: Thank you, your Honor. 5 THE COURT: All right, thank you all very much. 6 UNIDENTIFIED SPEAKER: Thank you, your Honor. 7 UNIDENTIFIED SPEAKER: Thank you, Judge. 8 UNIDENTIFIED SPEAKER: Thank, your Honor. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4:28 p.m. ---o0o--- 15 1 2 3 CERTIFICATE OF TRANSCRIBER 4 5 I, Leo Mankiewicz, certify that the foregoing is a 6 true and correct transcript, to the best of my ability, of the 7 above pages of the official electronic sound recording provided 8 to me by the U.S. District Court, Northern District of 9 California, of the proceedings taken on the date and time 10 previously stated in the above matter. 11 I further certify that I am neither counsel for, 12 related to, nor employed by any of the parties to the action in 13 which this hearing was taken; and, further, that I am not 14 financially nor otherwise interested in the outcome of the 15 action. 16 17 ___________________________05/26/2017 18 Signature of Transcriber 19 20 21 22 23 24 25 Date