This week, the Ninth Circuit Court of Appeals ruled against the Center for Medical Progress (CMP) in a discovery dispute with the National Abortion Federation.

CMP is the group of citizen journalists responsible for producing the undercover videos exposing Planned Parenthood’s practice of selling baby parts. This decision may end up being a costly one for CMP because it allows the National Abortion Federation to attempt to bury the group with discovery requests. Discovery is a pre-trial procedure in which parties can seek to obtain evidence for their case.

The National Abortion Federation filed a federal lawsuit in California in July against CMP seeking an injunction to stop the release of undercover videos apparently shot at National Abortion Federation’s annual meetings of abortion providers in 2014 and 2015.

Clearly worried about what information may surface from its conferences, the National Abortion Federation made a host of claims under various state and federal laws, including fraud, conspiracy, invasion of privacy, breach of contract and violations of the Racketeer Influenced and Corrupt Organizations Act, the federal law usually used to prosecute drug cartels and mob operations.

Some of these claims are based on National Abortion Federation’s claim that all participants at its annual meetings “must sign confidentiality agreements that prohibit attendees from disseminating any information learned at the conference”—despite the fact that other organizations have disseminated such information.

California anti-SLAPP Law

After the district court judge issued a temporary restraining order preventing CMP from publicly releasing its National Abortion Federation-related videos, CMP filed a motion to dismiss the lawsuit pursuant to California’s anti-SLAPP law.

SLAPP stands for Strategic Lawsuits Against Public Participation. Like a number of states, California has an anti-SLAPP law intended to prevent vexatious lawsuits designed to discourage free speech about important issues or government actions.

California’s law allows a defendant like CMP to file a special motion asking a court to dismiss a lawsuit that stems from the defendant’s “right of petition or free speech under the United States or California Constitution in connection with a public issue.”

As CMP argued in its anti-SLAPP motion, the California law also specifies that “all discovery proceedings in the action shall be stayed” or stopped as soon as the motion is filed.

Without such a provision, a powerful plaintiff like the National Abortion Federation could continue to harass a defendant like CMP with voluminous, expensive, and time-consuming discovery requests for information, documents, and depositions.

Discovery Will Not Be Halted

However, on August 21, federal district court Judge William Orrick announced that he would not stay discovery despite the California law although he would limit discovery to that required for consideration of the preliminary injunction that National Abortion Federation is seeking.

CMP appealed the denial of its anti-SLAPP motion to the Ninth Circuit Court of Appeals by filing a petition for a writ of mandamus (an order directing the district court to stay discovery). A three-judge panel composed of Stephen Reinhardt, a Carter appointee, and Wallace Tashima and Johnnie Rawlinson, both Clinton appointees, denied CMP’s appeal on Wednesday.

Although California’s anti-SLAPP provision can be asserted in federal court, the panel determined that it “cannot apply” if the nonmoving party – National Abortion Federation – “has not had the opportunity to discover information that is essential to its opposition.”

In this case, according to the court, “questions regarding whether the [CMP] entered into a confidentiality and waiver agreement and what that agreement covers may well be ‘essential’ to the Federation’s opposition to the anti-SLAPP motion.”

Thus, the panel ruled that the need for the National Abortion Federation to obtain that information “takes precedence over any state-law discovery rule, especially here where, as the district court put it, the anti-SLAPP motion is ‘riddled with factual determinations that must be resolved.’”

First Amendment Concerns

The three-judge panel, however, did not address a major argument raised by CMP: that even if it signed such a confidentiality agreement, waivers of First Amendment rights are “plainly unenforceable as a matter of public policy.”

In its petition, CMP cited a number of cases on this issue, including the Ninth Circuit decision Leonard v. Clark, in which the court held that it would not enforce waiver of a constitutional right like the First Amendment “if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.”

CMP argues that its undercover videos involve important questions of public policy since they reveal,

“evidence of widespread criminal practices in the [abortion] industry” and have “dominated national and international headlines for months, sparked state and congressional investigations of industry participants, and triggered debates over public funding of abortion-providing entities in the U.S. Congress.”

According to CMP, a private waiver of First Amendment rights “interferes with the public’s ability to access information of critical public interest and importance,” thus shifting the balance noted by the Ninth Circuit “decisively in favor of disclosure.”

The Ninth Circuit said nothing about this argument or its prior holdings that are applicable to this issue and seem to support CMP. And the three-judge panel did not explain why it ignored this argument; it simply dissolved its temporary stay of the district court’s discovery order (issued while the three-judge panel reviewed the appeal) and then denied CMP’s petition for a writ of mandamus.

The end result of this order is that the National Abortion Federation will now be able to proceed with any discovery against CMP that it thinks is “relevant” to the preliminary injunction it is seeking despite the applicable anti-SLAPP law.

Given its behavior so far in this litigation, there seems little doubt that the National Abortion Federation’s lawyers will try to make that discovery as burdensome and onerous as possible.