Planned Parenthood Federation of America, Inc. v. Center for Medical Progress

Background

The court heard the parties’ motions in limine, motions to exclude evidence, and disputed legal issues before trial. The parties presented competing descriptions of the Human Capital Project: defendants characterized it as undercover journalism intended to expose legal violations involving fetal-tissue programs, while plaintiffs characterized it as a campaign intended to damage Planned Parenthood and drive it out of business. The court said those narratives provided context, but were not directly and significantly relevant to the claims and defenses remaining for the jury.

The court also ruled that the jury would not decide whether Planned Parenthood affiliates profited from fetal-tissue programs, violated federal laws concerning fetal tissue, or had live births during abortion procedures. Under Federal Rule of Evidence 403, which permits exclusion of evidence when its dangers—such as confusion, unfair prejudice, or wasted time—substantially outweigh its usefulness, the court excluded evidence concerning those subjects. Defendants could still present evidence of what they knew, believed, and intended when the Human Capital Project began and before the first surreptitious recording. Daleiden and Merritt could also present evidence relevant to their claimed reasonable-belief defense under California Penal Code section 633.5, but only based on information known before the first surreptitious recording.

Disputed legal issues

The court ruled that plaintiffs’ civil-conspiracy claim could proceed to trial based on underlying tort claims including fraud, trespass, and illegal recording. Plaintiffs’ fraud claim could proceed based on affirmative misrepresentations, omissions, and promissory fraud or fraudulent inducement. Plaintiffs could base an affiliate’s confidentiality-agreement claim on the act of recording itself.

The court stated that no jury instructions were necessary on the unfair-competition-law claim and that evidence related solely to that claim should not be presented at the jury trial. If necessary after the jury trial, the court said a separate bench trial would begin on December 2, 2019, to address that claim.

Plaintiffs’ motions in limine

The court granted plaintiffs’ motions concerning expert Paul Zimmer’s prior accounting firm, accounting costs and reimbursements, abortion methods and procedures, legislative and investigative bodies, tissue-procurement organizations, non-party abortion providers, and causes of action plaintiffs did not assert. The rulings had stated exceptions allowing limited testimony by Daleiden or Merritt about information supporting their reasonable-belief defense. The court denied plaintiffs’ motions concerning Brian Prendergast’s opinions and evidence referring to defendants as journalists or referring to journalistic activities by third parties.

The court also granted plaintiffs’ motions to exclude portions of Zimmer’s testimony interpreting 42 U.S.C. section 289g-2 and testimony by experts James Woods, Forrest Smith, and Theresa Deisher on subjects including alleged born-alive infants, abortion procedures, fetal-tissue practices, and related opinions. The court denied plaintiffs’ motion to exclude Brian Prendergast’s opinions about whether the Human Capital Project videos were edited to remove non-pertinent footage. Prendergast could testify, and plaintiffs could challenge his opinions through cross-examination and their own witnesses.

Defendants’ motions in limine

The court denied several defense requests, including requests concerning defendants’ alleged prior frauds, certain descriptions of fetal-tissue programs, labels such as “false,” “misleading,” or “smear,” emotional distress of plaintiffs’ staff, prior abortion-related activities of certain defendants, and some evidence concerning abortion-related organizations and events. The court granted requests to exclude evidence about government investigations, charges, or settlements; prohibited references to certain highly prejudicial terms and materials; excluded a photograph of Newman with a gun; and granted other requests concerning Newman’s detention in Australia and the calling of defense counsel as a witness, subject to the conditions stated in the order. The court also imposed limitations on evidence concerning post-video security incidents, including a prohibition on mentioning the Colorado shooting and on tying particular acts of violence to these defendants without evidence of their involvement.

The court addressed proposed witness substitutions and late-identified witnesses. It allowed the specified substitutions and permitted certain witnesses to testify subject to stated limits, including making one witness available for three hours of deposition before trial and either stipulating to authentication of exhibits or presenting an Internet Archive witness.

Other rulings and disposition

The court granted defendants’ motion to exclude Elizabeth Eccher’s testimony because plaintiffs said they intended to use her only to respond to Zimmer’s opinions, which the court had excluded. The court denied defendants’ motion to strike and request for sanctions. It directed plaintiffs to respond by September 18, 2019, to defendants’ requests for judicial notice of documents for trial, and stated that the issue would be addressed at the September 23, 2019 Final Pretrial Conference.

This was an order on pretrial evidence and related trial issues. It did not enter a final judgment on the remaining claims.