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Federal Judge Warns CMP Founder, Rejects 5th Amendment Argument

Federal Judge Warns CMP Founder, Rejects 5th Amendment Argument

November 25, 2015 — A federal judge in an order issued on Friday said that the founder of the antiabortion-rights group Center for Medical Progress is trying to "hide the ball" rather than comply with the earlier orders to provide information necessary for a lawsuit brought by the National Abortion Federation, Politico Pro reports (Haberkorn, Politico Pro, 11/25).


Earlier this year, Judge William Orrick of the Northern District of California issued a temporary restraining order against CMP after NAF filed a lawsuit against the organization. The order blocked CMP from releasing any of its secretly recorded video footage of NAF's annual meetings in 2014 and 2015, as well as from releasing dates of NAF's future meetings and the names and addresses of NAF members.

Separately, the House Oversight and Government Reform Committee issued a subpoena to obtain the footage, as well as footage CMP secretly recorded of Planned Parenthood officials.

Oversight Committee Chair Jason Chaffetz (R-Utah) said members and staff would view the subpoenaed material privately and the material would not be made public "out of an abundance of caution to ensure the safety and security of all individuals recorded." However, the editor of a conservative website obtained the footage and posted it online. The source who provided the editor with the footage has not been identified.

Following the leak, Orrick in November granted NAF's request that CMP founder David Daleiden provide "all originals and copies of material covered by the [temporary restraining order] to outside counsel for CMP for safekeeping."

In addition, Orrick in that ruling said CMP must disclose the names of individuals and organizations that have been made privy to the confidential NAF footage. He noted that CMP may not redact names in its response to NAF's discovery requests. However, the names will be redacted on the publicly available versions of the court documents.

Orrick also rejected Daleiden's argument that he has a First Amendment right not to share the names of such individuals and organizations. Orrick noted NAF needs such information to prepare a request for a preliminary injunction. Further, Orrick ruled that Daleiden cannot invoke the Fifth Amendment right of those who worked with him in infiltrating the meetings.

In response, Daleiden argued that he has a Fifth Amendment right not to share the names to protect himself against self-incrimination on potential charges of conspiracy. Orrick gave Daleiden until Nov. 4 to submit a brief on this claim (Women's Health Policy Report, 11/4).

Latest Order Details

In the latest order, Orrick said, "It is time to end this shell game."

Orrick rejected Daleiden's argument that concerns of potentially being charged with conspiracy would allow Daleiden to invoke a Fifth Amendment right to hide the names of those who worked with him. Orrick noted that Daleiden has already shared that he and others used false pretenses to infiltrate and record the meeting.

According to Politico Pro, a CMP donor anonymously submitted court documents that said the donor would not have given money to the organization if the donor had known the information would be public. However, Orrick said his order did not necessarily entail donor information, and he reiterated that the shared materials would be for "attorneys['] eyes only."

Orrick wrote, "The information is central to determine the appropriate scope of any preliminary injunction and there is no less intrusive way to obtain that information" (Politico Pro, 11/25).