MoFo Perspectives: Defending Reproductive Rights

In this special pro bono episode of MoFo Perspectives, MoFo associates Spencer McManus and Karen Leung speak with partner Derek Foran and National Abortion Federation (NAF) Chief Program Officer Melissa Fowler about their long, hard-fought legal battle to prevent the release of a smear campaign against abortion providers by anti-abortion extremists. They discuss the challenges and the nuances of the case, which eventually resulted in Judge William H. Orrick III of the Northern District of California granting summary judgment on behalf of our client National Abortion Federation and issuing a permanent injunction, preventing the release of the tapes.

Transcript

Speaker: Welcome to MoFo Perspectives, a podcast by Morrison & Foerster, where we share the perspectives of our clients, colleagues, subject matter experts, and lawyers.

Karen Leung: Hello, and welcome to MoFo Perspectives. I’m one of your co-hosts Karen Leung. I’m an associate in Morrison & Foerster’s litigation department in San Francisco. And while my practice spans a variety of legal matters, I focus primarily on securities and M&A litigation, and investigations.

Spencer McManus: Hi everyone. I’m your other co-host Spencer McManus. I’m also an associate in Morrison & Foerster’s litigation department and I largely represent companies in complex civil litigation matters in both U.S. federal and state courts and in private arbitrations.

Karen Leung: Spencer and I worked on this matter since we were first summer associates and then we rejoined the team when we returned as associates, after graduating from law school. Both of us are very passionate about doing pro bono work in the area that we are here to discuss today. Reproductive rights.

Spencer McManus: We are pleased to be joined by our colleague, Derek Foran, who has been the leader of our team from the very beginning on this very important, long, and hard fought case for our client, the National Abortion Federation, or NAF. Derek, could you please give us a brief intro of yourself and your role on the team?

Derek Foran: Hello everybody. My name is Derek Foran. Thanks for the introduction, Spencer. I’m a partner at Morrison & Foerster, San Francisco office. Joined the firm following law school and a clerkship, and I’ve been there ever since. I feel myself very fortunate to be a MoFo lifer. I’m a commercial litigation attorney and trial attorney. I represent public and private companies and complex litigation and state and federal courts with a particular focus on trial work. One of the many reasons I came to Morrison & Foerster is because of its commitment to pro bono. And I have an active pro bono practice and I’ve maintained an active pro bono practice throughout my career. This case that we’re going to talk about today, that we brought on behalf of the National Abortion Federation, was one of the most important cases pro bono or otherwise that I’ve ever been involved in. I know many other members of the team feel the same way, and indeed, it’s one of the most important cases that the firm has ever brought on a pro bono basis, and I’m very proud of the firm for doing so.

Karen Leung: Thanks, Derek. Our client is the National Abortion Federation, or NAF, as Spencer said. It’s a professional association for doctors and other medical professionals who provide abortion services. We’re excited to be joined today by NAF’s chief program, officer Melissa Fowler. Melissa, could you introduce yourself?

Melissa Fowler: Sure. Thanks for having me. So I’ve been at NAF for 15 years, and I’m currently the chief program officer where I oversee our membership, communications, security, quality assurance, and development departments. So a lot of my work, and a lot of my staff’s work, has been involved in this case during the last six years. We are so grateful to Morrison and Forster and to this great team and really excited to be here to talk about it today.

Spencer McManus: Thanks to both Derek and Melissa. Karen, if you could just start out with just some brief background on the case.

Karen Leung: Sure. So in the summer of 2015, anti-abortion activist, David Daleiden released secretly recorded videotapes, which he claimed proved that medical providers across the country were selling baby parts. For a few weeks, he released one videotape at a time, containing misleadingly edited videos of doctors, nurses, and other medical professionals taken from conferences, offices, and restaurants.

Spencer McManus: Many of the videos that Mr. Daleiden took were recorded at NAF’s annual conferences, indirect violation of nondisclosure agreements and confidentiality agreements that Mr. Daleiden had signed prior to entering the conferences. Mr. Daleiden, and his co-conspirators used false identities to infiltrate NAF’s conferences, used secretly hidden body cameras to record abortion care providers, and cropped and stitched excerpts of conversations to make it seem like these providers were having discussions about illegal behavior involving fetal tissue.

Karen Leung: So Derek, could you tell us how this case first landed on your plate and what your first steps were?

Derek Foran: I’m happy to Karen, how long have you got?

Karen Leung: As long as you want Derek! <Laugh>

Derek Foran: It’s a long story, but let me just cut to the chase, as you and Spencer just explained, in the summer of 2015, a group of anti-abortion activists began releasing surreptitiously taken videotape of doctors that they claimed showed evidence of criminal wrongdoing. Those allegations were completely false. They have proven to be completely false over time, but with the release of these videos, there was a firestorm of controversy and all sorts of efforts on the part of right wing politicians to defund Planned Parenthood, amongst other things, as a result of these videos. So while we’re sitting here in 2021, with the benefit of hindsight, David Daleiden and his cohorts have been de shown to have made outrageous accusations without any basis whatsoever. At the time, this was very, very serious, indeed. I remember watching this on a daily basis on the news at the time, somewhat aghast at what was going on.

Derek Foran: And about three weeks into this, I received an email from Jennifer Brown, who was one of our full-time pro bono lawyers out of our New York office. She had received, in turn, a communication from Lisa Brown, who was then general counsel of the National Abortion Federation. Lisa was reaching out in order to try to line up pro bono counsel for the National Abortion Federation, because of course they realized that David Daleiden was all over the newspapers and all over the news, every single night that this guy had gained access to their meetings by false pretenses. And he was about to, at any moment, start releasing videos from the National Abortion Federation’s meetings. I want to emphasize that the National Abortion Federation, plays an absolutely critical role in the pro-choice movement in the United States. It’s the biggest organization of its kind. It’s one of the only organizations that come together and provide continuing medical education for the doctors, and physicians, and other folks that were work in this space.

Derek Foran: Their meetings are sacrosanct and the notion that somebody had infiltrated the meetings and potentially videotaped everybody, struck fear into their heart of the members of the organization, and it was something of an emergency. I immediately spoke to Lisa, agreed to take the case. Within a matter of hours, we had raised the issue with management because we knew what kind of case we were taking on. And we knew what kind of commitment we were going to meet on the other side; we knew that this was going to be a very big deal. So I raised it with the highest levels of management at the firm up to, and  including, the chairman of our firm and the firm blessed it notwithstanding the fact that they knew this was going to be an absolutely huge lift. There was a lot of issues to think through. What were we going to file?

Derek Foran: Where were we going to file? When were we going to file and what the consequences of all of that, where, but we very quickly struck up an incredibly productive working relationship with the National Abortion Federation, and Melissa in particular, I remember sitting in my office on a Sunday afternoon trying to shell out the complaint. I had been asking for days for copies of documents to help me understand the facts and help me start shelling out the case, and all of a sudden, I see email after email hit my inbox from somebody called Melissa Fowler at the National Abortion Federation. And I quickly realized, I found a motherlode of information about what had happened. And we were able to move quickly, get into court that week, ask the federal court for an emergency temporary restraining order, which was granted, and you know, the rest is history, but that’s in effect how the case came to me.

Spencer McManus: Thanks, Derek. And Melissa, from the NAF side of things, what happened in the early days of the litigation and how in your team and the organization, how did you respond to the allegations and coordinate with?

Melissa Fowler: So when the first video came out in July of 2015, we were as a movement, we’re trying to figure out who these people were. You know, no one had even heard of this so-called Center for Medical Progress. And so in the first days we were really just trying to figure out who they were, how they had infiltrated our meetings and all they had been. So we could try and figure out how many members might be at risk of being demonized in a future video. And all of this is just to keep our members safe, which was our top priority at the time. And so once we figured out that they had actually been at two of our meetings, and as Derek says, these meetings are sacred to us. We do so much to secure them, and so it was just a huge shock, one, to find out that they had been to two of them.

Melissa Fowler: And when we knew that we knew they had had access to so many of our members. And so our security team immediately started working with our members to try and address all of the concerns that they had, because as each video came out, we were sitting by and watching this spike in harassment and threats against the people and the videos. And so our members were scared and were worried that they would be next. You know, for us, we knew that the security piece was really important, but we also knew that it was really important for us to take legal action and to fight back to protect our members so that we could try and prevent them from being targeted in future videos. And while Lisa worked to try and find pro bono counsel, we were thrilled, and I would say really relieved when we got the call that MoFo was going to take the case.

Melissa Fowler: And from there, it was really an all hands on deck effort for us. Almost our entire staff was called in. We were working nights, weekends, trying to pull together all the information for the brief and trying to get the team up to speed on the tactics that these individuals use and all of the different ways that they harass and threaten our members every single day. So for me, I remember a lot of late nights, a lot of calls to California, and just really working around the clock with the team to try and act quickly so we could keep our members safe.

Karen Leung: Thanks, Melissa. It seems like things were incredibly hectic and obviously very urgent at the time. And so on the legal side of things, we filed the complaint. Judge Orrick granted NAF’s motion for a temporary restraining order, pretty much right away. And this immediately set off a chain of events. So we had multiple court hearings in a short period of time, expedited discovery, subpoenas of third parties, intervention by various attorneys general from different states. Finally in February, 2016, Judge Orrick, granted NAF’s motion for a preliminary injunction. So Melissa, can you tell us what your NAF’s concerns were in the months leading up to the preliminary injunction?

Melissa Fowler: Sure. So our biggest concern at that time was really the safety of our members. So during the fall of 2015, CMP continued to release videos and we always knew that there was a chance that they might violate the TRO. So every single week we were bracing for a new video and then had to make sure that it didn’t contain any of the 504 hours of footage that they had stolen from our meetings. So even though the videos didn’t contain footage from our meetings, they did often feature our members, and so we were still dealing with a lot of fallout during that time from these videos. And like I said, each time there was a video that was released, we would see this dramatic spike in harassment and people being targeted online, and even lots of death threats against the clinic staff who were in those videos.

Melissa Fowler: And so we were doing tons of security work with our members to try and help them assess and improve their personal security. We were tracking all of this activity online and reporting threats in real time to law enforcement. And we saw such an increase in the online threats and harassment at this time that we couldn’t even stay on top of monitoring it anymore. So during this time period, we had to hire an outside security firm to help us track this activity. And really the thing that was in the back of all of our minds, all of this time, was we were so afraid that there was going to be an act of violence against an abortion provider. And unfortunately we saw that happen in November of 2015, when a shooter attacked a clinic in Colorado, whose medical director had been featured in one of the videos, and that attack left nine people wounded and three people dead. So the security threats leading up to the preliminary injunction were very real for us. And on top of that, we were also dealing with frivolous investigations from Congress at the time, and from agencies all over the country who were sort of jumping on this bandwagon. So there were a lot of things going on and a lot of very real threats for us in the months leading up to the preliminary injunction.

Derek Foran: Let me just jump in there. The time between us getting the TRO and getting the preliminary injunction was intense and a lot happened. And a lot of learning happened on the lawyer side, just with respect to the kind of people and the organization that NAF is and the members of NAF. When I started to learn about this organization, and when I started to learn what it is that doctors and other folks that work at these clinics have to go through in order to protect themselves, it’s shocking. It’s absolutely shocking. There are doctors, members of NAF, who wear bulletproof vests to work on a routine basis. There are doctors who have to use different routes to get to work to make sure that they’re not being followed or that bombs aren’t being planted under their cars. There are doctors, and again, other members, nurses and so forth, that work at these clinics that maintain extremely low profiles on social media.

Derek Foran: There are doctors and other members of NAF who do not speak publicly about what it is they do for fear of incrimination or reprisal, because they are subject to acts of an intimidation and harassment on a virtually daily basis. It’s absolutely outrageous what they have to go through in order to ensure reproductive rights in this country. And it’s not something that I’d ever focused on before. And when I realized what it was that our members had to do in order to do what they did, it was really sobering, and it made me, and I know it made everybody the member of the team at the time, feel very proud to do what we had done. I’ll also add that Melissa referenced, there were 504 hours of videotape and other audio tape in our meetings. We did not know that at the time that we filed for the TRO. We strongly suspected that David Daleiden had walked into a highly secure meeting space and videotape people based on the other videos that he had released, but we didn’t know it for sure. And the day that we found that out, I never felt angrier in my life.

Spencer McManus: Thanks Derek and Melissa. Another reason this case is long fought and kind of unusual, at least from the legal side of things, is because it’s been up on appeal to the a ninth circuit multiple times, and even to the U.S. Supreme court. Notably, NAF has prevailed each time. I believe the latest count is eight, ninth circuit trips. Derek, can you explain a little bit about why this case has been up so many times on appeal?

Derek Foran: Well, because the defendants in the case have engaged in obstructionist tactics to try to shield what they did and who they did it with. It’s no more or less complicated than that, as far as I’m concerned. In terms of the legal issues, and as Spencer, as you correctly pointed out, we have won every single time that we’ve been up on appeal. If my memory serves correctly, I remember them filing an emergency writ in the ninth circuit the day before Thanksgiving. And I’m getting phone calls from staff attorneys at the ninth circuit asking me to file a brief the next day. It got to the point where I had the staff attorneys at the ninth circuit on speed dial so I could figure out our briefing schedules for these emergency risk that were getting filed to try to obstruct discovery and the revealing of the truth in this case.

Derek Foran: In terms of the key legal issues from the defendant’s perspective, of course, it’s always been about the first amendment they have claimed from the get go that prohibition on them, releasing tapes, constituted a prior restraint under the first amendment. We struggled with that issue early on in the case, we thought very long and hard about it. I actually remember the day I was actually in the gym working out thinking about this, and I realized, “Hey, don’t we have confidentiality agreements? And how is it that the enforcement of a confidentiality agreement constitutes a prior restraint?” If that were the case, you’d never be able to enforce a confidentiality agreement and that’s not the law. We quickly researched it. And we realized that we were right. So it was the confidentiality agreements that were the key to the case. There’s never been a case that has ever found that the enforcement of confidentiality, agreement showing that agreement of course, is lawful constitutes a prior strength under the first amendment. So that was how we were able to get around that issue. David Daleiden continues to claim that he is a quote, unquote, journalist. There’s a long line of Supreme Court cases that say journalists are not above the law and they have to comply with the law. So it was fairly straightforward once we are, those issues out and moved forward.

Karen Leung: So over a year after Judge Orrick granted the preliminary injunction, Mr. Daleiden and his defense counsel representing him in a California state court, criminal proceeding uploaded hours of enjoined videos to the defense counsel’s website and YouTube page. This was in direct violation of the preliminary injunction. Melissa, what happened at that time? And what steps did you and NAF have to take to mitigate it?

Melissa Fowler: When you talk about highs and lows in this case, this is definitely one of those moments where I was just enraged for days. Right before Memorial Day, 2017, I got a text from a member who said there was another video out and she was in it. And I immediately looked at all the usual places to try and find the video and couldn’t. And so for a moment, I was really hoping that it was a mistake or something that was old, that was being circulated. But I quickly received a link to an attorney’s website, where in fact, all of this footage and new videos were posted, and I remember it was just so brazen and just such a clear violation of our injunction, that it was almost for a second hard to believe, but there it was. And so I immediately called Derek and we got to work.

Melissa Fowler: We had to notify all of the members who were in the leaked materials and our security team started working with them. Of course, they were incredibly frustrated and confused, and they had felt safer having this preliminary injunction in place, and now they were on the internet and leaked videos that were a direct violation of that injunction that had meant so much. So we heard lots of people and talked to lots of members and their family about their security concerns. Our security team even went and traveled and did some home assessments for people who were in that leaked footage. And our team really got to work focusing on trying to figure out all the places where these videos were spreading and getting posted, and trying to get them taken down off of other social media platforms or other websites. But it was really like a game of whack-a-mole. We would get them down on one site and then they would get posted on another site. So it was an incredible amount of stress and effort and frustration because it’s something that just should not have happened in this case, but something that did and that we had to deal with very quickly.

Spencer McManus: Thanks, Melissa. And from the MoFo side, I remember this happened in May, 2017, Karen and I were summer associates at Morrison & Foerster. It was something like our fourth day on the job. And I remember we had just got put on our first assignments and we had both been put on this case. And I remember seeing Derek literally running down the hallway. It was kind of a firestorm, really, because it had just come out that Mr. Daleiden and his counsel had violated the injunction. And Judge Orrick set a hearing really quickly that afternoon to have Mr. Daleiden and his counsel answer for what they had done or try to explain it. And I just always will remember that day because I was still a law student at the time, hadn’t been in practice at all. And I was just thinking to myself, is this what it’s always like? And <laugh> I very quickly realized that this was not the typical case and we weren’t dealing with the typical actors and that violations of court orders like this and running into court immediately and trying get, take down orders from social media sites. And so I’ll just always remember that day as a fourth day, summer associate at Morrison &Foerster. Derek, if you could just describe from the legal side, some of the additional steps that had to take at that point.

Derek Foran: Fortunately, because of the initial TRO and because of the injunction that we had gotten, and because of the passage of time, the media was less interested in David Daleiden’s crazy claims. I do remember getting up that morning and my phone was on fire. We immediately jumped on it. We immediately started working with the social media companies. Some of them were better than others in terms of moving quickly to shut all of this down. We couldn’t shut it all down, but in a combination of working really hard with Melissa and her colleagues at NAF with the social media companies, and seeking immediate and decisive judicial intervention from Judge Orrick, we weren’t able to shut it all down, but we were able tap it down in a very big way. And so it was really scary and really intense again for another few days. But we feel that we were able to get to the point, we were able tamp this down and it didn’t result in the kind of extreme violence that had occurred in the Fall of 2015.

Derek Foran: Thank goodness. Judge Orrick immediately issued in order to show cause why the defendants and her lawyer should not be held in contempt. Two and a half years into this case, the defendants took it into their heads to try to avoid those contempt charges by moving to disqualify Judge Orrick, because he was supposedly biased. The grounds for that motion included among other things that judge’s wife, if you can believe this had pink-ified her Facebook page to indicate support for Planned Parenthood, and therefore, Judge Orrick was biased. It was medieval type thinking. That did derail this sanctions proceedings for just a couple of weeks where the disqualification motion was heard by another judge in the Northern district and was quickly denied. And then we were back in front of Judge Orrick for the contempt proceedings. He held the defendants and their lawyers in contempt and charged them, I can’t remember the exact number now, I think it was only ordered $200,000 in contempt fees.

Karen Leung: Thanks, Derek. And I think it’s worth pointing out that with regards to the contempt fees, what’s important is that, Orrick held Mr. Daleiden and his criminal defense counsel jointly and separately liable for the security and personnel costs as well as for the attorney’s fees. And so what that means is that money is recoverable ultimately by the National Abortion Federation, which is unusual, I believe for a pro bono case. So I just wanted to fast forward to this spring when Judge Orrick granted NAF’s motion for summary judgment in a request for a permanent injunction. Derek, what was the process like to get this to this stage?

Derek Foran: I think it’s a good indication of how our firm rallies to get other in order to get the job done. We’re six years into the case at this point, many of the key members of the team have gone on to do other things. And lo and behold, Karen, you, and Spencer, and others are now in the driver’s seat and are taking leadership responsibility, including filing briefs and arguing this thing in front of the district court. What had happened in the meantime was that Planned Parenthood had proceeded to trial and won on similar claims against David Daleiden and the defendants. And one of the claims that Planned Parenthood had presented in their case was a claim for breach of our contracts on the basis that Planned Parenthood doctors who had attended our meetings were third party beneficiaries of those contracts. They prevailed on our breach of contract claim in their case.

Derek Foran: So that raises the issue of issue preclusion or raised Judaica. So we went to Judge Orrick and said, “we should be entitled to file a motion for summary judgment without the need for additional discovery on issue preclusion grounds and entry of a permanent injunction.” After several months of back and forth argument with the defendants. Judge Orrick agreed with us, we briefed a motion. Spencer argued it and did a brilliant job this Spring. And the judge granted the motion. So where we are now is effectively, we’re done in trial court. After six years of incredibly intense litigation, we have a permanent injunction in hand. The court recently entered judgment in our favor and articulated that permanent injunction in the judgment. We will be moving and have moved for attorney’s fees, and once that whole process is over the case will be up to the ninth circuit.

Spencer McManus: For the ninth time. I think it is now.

Derek Foran: For the ninth time. We’re in the ninth circuit for the ninth time. I like that alliteration. Yeah.

Karen Leung: Seems lucky.

Spencer McManus: That’s good luck. Yeah. Melissa, from NAF’s point of view, after almost six years of litigation, as Derek said, how does it feel to finally have a permanent injunction in place?

Melissa Fowler: It’s great. It’s definitely a victory for us. It was a moment of relief after so many years and so many constant challenges and developments in this case. We always knew that the law was on our side, and we always knew that we really needed this permanent injunction to keep our members safe. Without it, there’s no doubt in my mind that these individuals would keep releasing footage from our meetings, targeting our members, and it would continue to result in the type of harassment and violence that we’ve seen with each video release, so it was really important. It’s why we fought so hard and so long, but I do think like a lot of wins in our movement. It’s something that we took a minute to celebrate, but then had to really focus and get back to work. There are still just so many threats and challenges, even this week with the legislation you see in the states and the Supreme Court up an abortion case out of Mississippi. So while having this permanent injunction in place makes it one less thing that our members have to worry about, we still have a lot to do to keep fighting, to make sure that these clinics can keep their doors open and that providers can stay safe while they’re providing this really necessary healthcare.

Karen Leung: Thank you for that, Melissa. We’re close to the end of our time. I just wanted to ask both of you for your final thoughts on the case overall, the significance it has in the abortion care community. I know that from MoFo’s point of view, we didn’t expect this case to go on for almost six years. It’s a breach of contract case. So Derek, can you give your final thoughts?

Derek Foran: I mean, it’s a case that’s always going to be near and dear to my heart. It’s one of those cases where the folks that worked on it when they see each other, at bar association events, or when we run into each other on the street, it’s almost like the banded brothers and sisters kind of feeling because what we all went through together to take this case on successfully. So it’s a combination of pride, pride in the firm, pride in your colleagues, but also it was incredibly humbling as I said, because it’s a privilege to be a lawyer. And I don’t think we should ever forget that. It’s a privilege to have literally a license that permits you to stand up in court and say, “my name is so and so, and I’m here to represent whoever it is that you represent at the time,” that is a privilege. And to stand up on behalf of this organization and what it does to protect other people and ’its members, and what they go through was not a thing that I’m ever going to forget.

Derek Foran: And I’ll just share this with folks. We were extremely privileged. The firm was extremely privileged to receive the National Abortion Federation’s lifetime achievement award, for services to reproductive rights after we won the preliminary injunction in the case. And just to put this in context, prior winners of this award include Justice Harry Blackman for obvious reasons, three members of the United States Senate, the ACLU, and doctors who have given their lives in the service of the cause of reproductive rights in this country. We were invited to the National Abortion Federation’s annual meeting in 2016, and I got to meet, and other members of our team got to meet, the very doctors that we’d been working so hard to represent. And it was incredibly humbling to meet these people. And as I said, an incredible privilege to represent them. I’m never going to forget it

Karen Leung: Agreed with all of that, Derek. Melissa, do you have any final thoughts?

Melissa Fowler: I do. I mean, we feel the exact same way. We are so, so thankful to each one of you, it’s been great to work with all of you and all of the other people that have been part of the team over the years. You know, NAF and our members know that we could not have done this without you. I know when you took it, you thought it was going to be a breach of contract case and it would be straight forward, and this has been nothing like that and has gone on for so long. And we can’t thank you enough for standing with us and for all of the time that you devoted to this case and all of its unusual turns. And I think for the movement, it was important because it was important at that time for someone to really fight back. And I’m really proud that NAF was able to do that and that we were able to ultimately hold these people accountable. They were the ones who broke the law, not abortion providers. And this case gave us a chance to push back and to say, “no, it’s not okay to just lie about abortion providers. It’s not okay to demonize them. And we aren’t going to tolerate this type of harassment against people who are providing essential healthcare.” And now that we have this permanent injunction, it gives us a way to keep holding those individuals accountable and it will keep our members safe in the future. And for that, we really can’t thank all of you enough.

Spencer McManus: Thanks, Melissa. It’s been a real privilege to represent NAF and I’m really happy that we’ve prevailed and gotten a permanent injunction, and of course we’ll prevail on appeals for the final time, the ninth time in the ninth circuit. Thanks to both of you for your insight. This concludes our perspectives episode. I am one of your co-hosts Spencer McManus.

Karen Leung: And I’m your other co-host Karen Leung. We want to thank Derek and Melissa for taking the time to speak to us today about this very important case. Thank you.

Speaker: Please make sure to subscribe to the MoFo Perspectives podcast so you don’t miss an episode. If you have any questions about what you heard today, or would like more information on this topic, please visit mofo.com/podcasts. Again, that’s MoFo, M-O-F-O.com/podcasts.