Northern California Record

Wednesday, October 16, 2019

Judge rules on privilege logs in Planned Parenthood, Center for Medical Progress case


By Shanice Harris | May 6, 2019

OAKLAND – A federal court has partially granted Planned Parenthood's motion for in camera review in its suit against an anti-abortion group over videos disseminated on the internet.

After hearing both parties' arguments and written testimonies, Magistrate Judge Donna Ryu of the U.S. District Court for the Northern District of California partially granted Planned Parenthood Federation of America, et al.'s motion for the review of certain documents on defendant Center for Medical Progress, et al.'s privilege log. Center for Medical Progress also filed a motion fora review of documents in the plaintiffs' privilege log.

Before the court advanced the hearing on both motions from the opposing parties, the court “ordered defendants to submit four categories of documents for in camera review,” according to the ruling. “The court held a hearing on Feb. 14, 2019, and ordered the parties to submit supplemental briefing. The parties timely filed the requested briefing.”

In camera review is a process where a judge takes a look at one or both parties' private information and makes a decision on if that information should be made public and entered as evidence in the case or hearing. A privilege log is a document that outlines items that were withheld from a lawsuit because they contain confidential information, or “privilege.”

In December, both parties challenged the other's privilege logs, claiming deficiencies in each. The court denied both discovery letters and ordered the parties to “immediately meet and confer regarding the issues and 'revise their privilege logs consistent with any agreements or changes in position,'” the ruling states.

“If disputes remained after meeting and conferring, the court granted the parties leave to file a motion challenging the other side’s privilege log, subject to a briefing schedule and page limits," Ryu wrote.

The plaintiffs' motion for in camera review soon followed.

The court found that several files from the defendants were not privileged. 

“In the course of its review of the lodged communications, the court identified a number of communications that did not appear to fall under the attorney-client privilege, as they did not appear to be communications related to a request for or the provision of legal advice,” Ryu wrote.

The court ordered Center for Medical Process to show their communications with CMP law firm staff and Americans United Life staff, which they discussed travel arrangements, public relations strategies and expenditures of funds.

But, the court did rule that plaintiffs failed to show a basis sufficient enough for a camera inspection of communications between the defendants and attorneys L.L. and J.B.

“The court concludes that defendants have sufficiently established the existence of an attorney-client relationship between CMP and attorneys L.L. and J.B.,” Ryu wrote.

The defendants must also produce communications between donors J.H. and E.S. A legal common interest could not be determined to consider their interactions privileged.

According to a fact sheet Planned Parenthood published about the case, the plaintiffs filed the suit "outlining how the defendants engaged in a complex criminal enterprise to defraud Planned Parenthood and prevent the health care organization from providing preventive reproductive health services to millions of women and men. The lawsuit charges that the Center for Medical Progress, its leaders, and multiple co-conspirators engaged in illegal conduct that includes violating the Racketeer Influence and Corrupt Organization Act (RICO Act) and engaging in wire fraud, mail fraud, invasion of privacy, illegal secret recording and trespassing."

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