In the United States Court of Appeals for the Ninth Circuit › wp-content › ... · Nat’l...

No. 16-15360

In the United States Court of Appeals for the Ninth Circuit

NATIONAL ABORTION FEDERATION (NAF),

Plaintiff–Appellee, v.

THE CENTER FOR MEDICAL PROGRESS, ET AL.,

Defendants–Appellants. ________________________________

Appeal from the United States District Court for the Northern District of California Case No. 3:15-cv-03522-WHO

________________________________

BRIEF OF AMICI CURIAE ATTORNEYS GENERAL OF ALABAMA, ARIZONA, ARKANSAS, GEORGIA, LOUISIANA, MICHIGAN,

MONTANA, NEBRASKA, NEVADA, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WISCONSIN IN SUPPORT OF

DEFENDANTS–APPELLANTS AND REVERSAL

Mark Brnovich Attorney General Maria M. Syms Brunn W. Roysden III Evan G. Daniels Assistant Attorneys General OFFICE OF THE ARIZONA ATTORNEY

GENERAL 1275 West Washington Street Phoenix, Arizona 85007

April 25, 2016 (602) 542-5025

Case: 16-15360, 04/25/2016, ID: 9951949, DktEntry: 28, Page 1 of 38

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................... ii

STATEMENT OF AMICI CURIAE ........................................................... 1

SUMMARY OF ARGUMENT .................................................................... 6

ARGUMENT ............................................................................................. 10

I. THE DISTRICT COURT ABUSED ITS DISCRETION IN RESTRICTING CMP FROM FREELY COMMUNICATING WITH LAW ENFORCEMENT. ...................................................... 10

A. NAF Did Not Show A Likelihood of Irreparable Harm From CMP’s Disclosure to Law Enforcement Agencies. ...... 11

B. The Public Interest Strongly Favors Law Enforcement’s Right to Exercise Investigative Powers. ....... 16

1. Public Policy Strongly Favors Free Communication With Law Enforcement. .................... 16

2. The District Court Did In Fact Restrict CMP’s Communications to Law Enforcement. ........................ 18

3. The Court’s Limiting Principles Do Not Work. ........... 23

CONCLUSION ......................................................................................... 28


ii

TABLE OF AUTHORITIES

CASES

Buckwalter v. Nev. Bd. of Medical Examiners, 678 F.3d 737 (9th Cir. 2012) ................................................................. 20

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011) ............................................................... 27

Ctr. for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015) ............................................................... 17

Ctr. for Food Safety v. Vilasack, 636 F.3d 1166 (9th Cir. 2011) ............................................................... 10

Chen Chi Wang v. United States, 757 F.2d 1000 (9th Cir. 1985) ......................................................... 18, 25

City of Riviera Beach v. State, 82 So. 3d 198 (Fla. Dist. Ct. App. 2012) ............................................... 13

Comm. in Solidarity with El Salvador v. Sessions, 705 F. Supp. 25 (D.D.C. 1989) .............................................................. 20

Commonwealth ex rel. Hancock v. Pineur, 533 S.W.2d 527 (Ky. 1976) ...................................................................... 3

Crowley Foods, Inc. v. Lefkowitz, 428 N.Y.S.2d 81 (N.Y. App. Div. 1980) ................................................. 13

CUNA Mut. Ins. Society v. Attorney General, 404 N.E.2d 1219 (Mass. 1980) .......................................................... 5, 19

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) ............................................................... 17

Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) ................................................................. 10

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ............................................................. 7, 12

Google, Inc. v. Hood, No. 15-60205, __ F.3d __, 2016 WL 1397765 (5th Cir. Apr. 8, 2016) .. 26


iii

Hagberg v. Cal. Fed. Bank FSB, 81 P.3d 244 (Cal. 2004) ......................................................................... 25

Harmon Law Offices, P.C. v. Attorney General, 991 N.E.2d 1098 (Mass. Ct. App. 2013) .................................................. 3

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ..................................................................... 8, 11, 19

In re Bd. of Med. Review Investigation, 463 A.2d 1373 (R.I. 1983) ....................................................................... 13

In re JDS Uniphase Corp. Sec. Litig., 238 F. Supp. 2d 1127 (N.D. Cal. 2002) .................................................. 17

Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850 (10th Cir. 1972) ............................................................... 16

New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ............................................................................. 20

Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011) ........................................................... 6, 11

Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011) ................................................................. 12

Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ..................................................... 9, 10, 20

Roemer v. Cuomo, 888 N.Y.S.2d 669 (N.Y. App. Div. 2009) ................................................. 4

S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984) ....................................................................... passim

Schneiderman v. Rillen, 930 N.Y.S.2d 855 (N.Y. Sup. Ct. 2011) ................................................... 4

State v. Culp, 823 So. 2d 510 (Miss. 2002) ..................................................................... 3

State ex rel. Miller v. Publishers Clearing House, Inc., 633 N.W.2d 732 (Iowa 2001) ................................................................. 19

State of Nebraska Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326 (D.C. Cir. 2006) ............................................................... 11


iv

United States v. Dionisio, 410 U.S. 1 (1973) ................................................................................... 26

United States v. Golden Valley Elec. Ass’n, 689 F.3d 1108 (9th Cir. 2012) ............................................................... 26

United States v. Institute for College Access & Success, 27 F. Supp. 3d 106 (D.D.C. 2014) ......................................................... 17

United States v. Miller, 425 U.S. 435 (1976) ........................................................................... 3, 25

United States v. Morton Salt Co., 338 U.S. 632 (1950) ........................................................................... 3, 19

Vringo, Inc. v. ZTE Corp., No. 14-4988, 2015 WL 3498634 (S.D.N.Y. June 3, 2015) ................... 25

Wilson Corp. v. State ex rel. Udall, 916 P.2d 1344 (N.M. Ct. App. 1996) ....................................................... 4

Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ........................................................................... passim

Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ................................................................. 11

STATUTES

Ariz. Rev. Stat. § 44-1524 ........................................................................... 4

Ariz. Rev. Stat. § 44-1525 ......................................................................... 13

Ariz. Rev. Stat. § 44-1526 ........................................................................... 4

Ind. Code § 4-6-3-3 ...................................................................................... 5

Ky. Rev. Stat. § 367.240(1) ......................................................................... 5

Miss. Code Ann. § 75-24-27 ........................................................................ 5


v

OTHER AUTHORITIES

Amici Curiae Brief in Support of Miss.’s Interlocutory Appeal, Google Inc. v. Hood, __ F.3d __, 2016 WL 1397765 (No. 15-60205), 2015 WL 4094982 .................................................................................................. 27

Megan Cassella, California Officials Seize Computers, Footage from Anti-abortion Activist, REUTERS, Apr. 6, 2016 ..................................... 15

Nat’l Ass’n of Att’ys Gen., State Att’ys Gen. Powers and Responsibilities (3d ed. 2013 Emily Myers ed.) ................................................................ 3


1

STATEMENT OF AMICI CURIAE

All parties have consented to the filing of this brief by the

Attorneys General of Alabama, Arizona, Arkansas, Georgia, Louisiana,

Michigan, Montana, Nebraska, Nevada, Oklahoma, South Carolina,

Texas, Utah, and Wisconsin (“Amici”).1 Amici are their respective

states’ chief law enforcement officers and hold authority to file this brief

on behalf of their offices. In the District Court, several state Attorneys

General filed a Memorandum of Law as amici curiae, supporting the

request of Defendants–Appellants Center for Medical Progress et al.

(referred to collectively as “CMP”) to clarify that the temporary

restraining order (“TRO”) did not limit communications with law

enforcement. (Dkt. No. 99-1.)2 Although the District Court partially

granted clarification, it nonetheless placed significant restrictions on

CMP’s ability to disclose information to law enforcement during the

TRO’s pendency. (ER19; Dkt. No. 132 at 1-2.) When Plaintiff–Appellee 1 No counsel for a party authored this brief in whole or in part. No party, no party’s counsel, and no person other than Amici, their offices, or their counsel made a monetary contribution to the preparation or submission of this brief.

2 District Court filings not included in the Excerpts of Record “ER” are cited as “Dkt. No. _,” which corresponds to the PACER docket (ER223-74). Pin cites are to the internal page number rather than PDF page.


2

National Abortion Federation (“NAF”) moved for a preliminary

injunction, a larger group of Attorneys General again filed a

Memorandum of Law as amici curiae opposing NAF’s requested relief.

(Dkt. No. 285.) The District Court issued the preliminary injunction

(“PI”), largely granting the relief NAF sought and keeping in place a

prior restraint on speech that limits CMP’s ability to communicate with

law enforcement. (ER42.)

Amici have a strong interest in the outcome of the issues before

this Court. The PI not only interferes with CMP’s ability to

communicate with law enforcement in this case but also sets a troubling

precedent for future cases—that an association wishing to avoid law-

enforcement scrutiny can obtain an injunction restricting

communications regarding potential wrongdoing. It is undisputed that

law enforcement was not involved in collecting the materials and

information at issue, and this case solely involves persons who wish to

communicate information pertinent to potential wrongdoing to law

enforcement. See S.E.C. v. Jerry T. O’Brien, Inc. (O’Brien), 467 U.S.

735, 743 (1984) (“[W]hen a person communicates information to a third

party even on the understanding that the communication is


3

confidential, he cannot object if the third party conveys that information

or records thereof to law enforcement authorities.” (citing United States

v. Miller, 425 U.S. 435, 443 (1976)).

Among the duties of Attorneys General, “paramount” is the “duty

to protect the interests of the general public.” State v. Culp, 823 So. 2d

510, 514 (Miss. 2002) (citation and internal quotation marks omitted).

To fulfill this paramount duty, Attorneys General have broad authority

to investigate potential violations of state laws within their

jurisdictions. See, e.g., United States v. Morton Salt Co., 338 U.S. 632,

652 (1950) (“Even if one were to regard the request for information in

this case as caused by nothing more than official curiosity, nevertheless

lawenforcing agencies have a legitimate right to satisfy themselves that

corporate behavior is consistent with the law and the public interest.”);

Nat’l Ass’n of Att’ys Gen., State Att’ys Gen. Powers and Responsibilities

11 (3d ed. 2013 Emily Myers ed.) (recognizing “investigative authority”

as among “[t]he most common and most important functions identified

with the office of” state Attorney General).3

3 See also Commonwealth ex rel. Hancock v. Pineur, 533 S.W.2d 527, 529 (Ky. 1976) (citing Morton Salt); Harmon Law Offices, P.C. v.


4

Administrative subpoenas, which include civil investigative

demands (“CIDs”), are a vital investigative tool. See Wilson Corp. v.

State ex rel. Udall, 916 P.2d 1344, 1348 (N.M. Ct. App. 1996) (observing

that “CIDs enable the Attorney General to obtain information without

first accusing anyone of violating” laws). Many state statutes and state

courts grant Attorneys General considerable latitude and discretion in

issuing CIDs and subpoenas. See Roemer v. Cuomo, 888 N.Y.S.2d 669,

670-71 (N.Y. App. Div. 2009) (noting that the New York Attorney

General has “broad authority” to issue subpoenas in connection with

investigations into fraudulent or illegal business activities). In Arizona,

for example, the Attorney General can require examinations under oath

and examine any merchandise, record, book, document, account or

paper as deemed necessary. Ariz. Rev. Stat. § 44-1524(A)(3). The

power to issue subpoenas often extends beyond the person being

Attorney General, 991 N.E.2d 1098, 1103 (Mass. Ct. App. 2013) (finding that the Massachusetts consumer protection statute “gives the Attorney General broad investigatory powers to conduct investigations whenever she believes a person has engaged in or is engaging in any conduct in violation of the statute”); Schneiderman v. Rillen, 930 N.Y.S.2d 855, 855-56 (N.Y. Sup. Ct. 2011) (“The Attorney General is permitted broad authority to conduct investigations, based on the complaint of others or on his own information, with respect to fraudulent or illegal business practices.” (citation omitted)).


5

investigated to “any person.” See, e.g., Ariz. Rev. Stat. § 44-1526(A)(1);

CUNA Mut. Ins. Society v. Attorney General, 404 N.E.2d 1219, 1222

(Mass. 1980) (state Attorney General is not limited to issuing CIDs only

to the person being investigated and is entitled to documentary

material from respondent that could demonstrate legal violations by

others).4

By restricting CMP’s ability to communicate with law

enforcement, the PI contravened the longstanding authority of state

Attorneys General to receive information and investigate potential

wrongdoing efficiently and effectively. See, e.g., O’Brien, 467 U.S. at

749-51 (explaining why a prior-notice requirement to target of

investigation when a third party is subpoenaed is “highly burdensome”

and “would substantially increase the ability of persons who have

something to hide to impede legitimate investigations”). Because the PI

in this case interferes with law enforcement investigations and also sets

a troubling precedent, Amici have a strong interest in supporting

reversal.

4 Other states grant similar powers. See, e.g., Ind. Code § 4-6-3-3; Ky. Rev. Stat. § 367.240(1); Miss. Code Ann. § 75-24-27.


6

SUMMARY OF ARGUMENT

The PI’s restrictions on communications to law enforcement are

not justified by the test for injunctive relief and, if repeated elsewhere,

will likely thwart legitimate law enforcement investigations in many

different contexts. The PI prevents CMP from publishing or otherwise

disclosing to any third party recordings taken and confidential

information learned at NAF meetings. (ER42.) This restriction applies

to voluntary disclosure by CMP to law enforcement. Under the PI,

CMP can only produce documents that are specifically responsive to a

law-enforcement subpoena and must provide prior notice to NAF so that

NAF may review any planned response and challenge the relevant

subpoena issued to CMP. (ER40-41; Dkt. No. 132 at 1-2.)5

Simply put, there is no proper basis for restraining CMP—or any

other third party—from communicating with law enforcement

regarding potential wrongdoing. It is fundamental that a preliminary

5 The PI’s effect, consistent with the District Court’s earlier orders, is to require CMP to provide NAF prior notice as well as the opportunity to review and attempt to narrow CMP’s response to any subpoena. Contrary to any implication in the PI, the protective order does not govern disclosure of the materials at issue because they were not disclosed to CMP in the course of discovery. (Dkt. No. 92 at 1 ¶¶ 1, 2.4.)


7

injunction is an extraordinary remedy that “must be tailored to remedy

the specific harm alleged,” and “[a]n overb[roa]d injunction is an abuse

of discretion.” Park Vill. Apartment Tenants Ass’n v. Mortimer Howard

Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (citation omitted).

NAF did not meet its burden to enjoin communications to law

enforcement based on at least two of the four injunctive-relief factors—a

likelihood of irreparable harm in the absence of preliminary relief and

that such an injunction is in the public interest. First, with respect to

irreparable harm, NAF did not show—and the District Court did not

find—that there was a likelihood of irreparable harm from disclosure to

law enforcement; yet the injunction restricts that very activity.6

Therefore, as with another recent case in which this Court addressed a

prior restraint, there is a “mismatch” between the harm and the

requested injunction. Garcia v. Google, Inc., 786 F.3d 733, 744 (9th Cir.

2015) (en banc) (reversing injunction requiring takedown of

controversial video based on actor’s copyright claim). This alone

mandates narrowing the PI’s scope.

6 Disclosure to law enforcement and other government entities has occurred outside the PI for various reasons, undercutting further any causal relationship between such disclosure and NAF’s claimed injury.


8

In addition, public policy strongly favors free and open

communications to law enforcement. The District Court did not deny

this, and even found that “public policy may well support the release” of

certain records in this case. (ER33.) Thus, even if NAF could have

articulated a likelihood of irreparable injury from disclosure to law

enforcement, “any [likelihood of irreparable] injury is outweighed by the

public interest,” and injunctive relief covering this activity was

improper. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 23 (2008).

The Court nonetheless placed restrictions on CMP that

“substantially interfere[] with [its] ability to communicate freely with

law-enforcement agencies conducting official investigations.” (Brief for

Appellants at 19.) That law enforcement can obtain some information

pursuant to a subpoena and with prior notice to NAF does not excuse

the PI’s overbreadth. (ER39-40.) The Supreme Court has stated that it

is “[e]specially debatable” that a person “may obtain a restraining order

preventing voluntary compliance by a third party with an

administrative subpoena” and noted it has “never before expressly so

held.” O’Brien, 467 U.S. at 749. The Court also squarely rejected the

notion that prior notice to persons other than the recipients of


9

investigative subpoenas is a workable requirement, and further noted

this would permit investigative targets to impede investigations. Id. at

749-51. These concerns apply with equal force to state investigations.

See Huffman v. Pursue, Ltd., 420 U.S. 592, 603 (1975) (noting

“seriousness” of federal judicial interference with state civil functions).

Based on the PI, NAF is in the position of influencing what information

law enforcement agencies receive—a result directly contrary to O’Brien.

The District Court also misapprehended the correct legal standard

when it focused on whether state Attorneys General had intervened as

parties (ER34), rather than whether the injunctive factors supported

restricting CMP’s communication with law enforcement. See Price v.

City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (an injunction

“must be narrowly tailored ‘to affect only those persons over which [the

Court] has power’ and to remedy only the specific harms shown by the

plaintiffs, rather than ‘to enjoin all possible breaches of the law’”

(citation omitted)). Finally, neither the court’s interpretation of the

recordings nor the extent of CMP’s actions to gain entry to NAF

meetings provides a workable limiting principle, and instead the PI is a

troubling precedent that invites future challenges.


10

ARGUMENT

I. THE DISTRICT COURT ABUSED ITS DISCRETION IN RESTRICTING CMP FROM FREELY COMMUNICATING WITH LAW ENFORCEMENT.

A “plaintiff must satisfy the four-factor test in order to obtain

equitable injunctive relief, even if that relief is preliminary.” Flexible

Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 996-97 (9th Cir.

2011). In Center for Food Safety v. Vilasack, this Court reversed a

preliminary injunction because the plaintiffs “ha[d] not demonstrated

. . . a likelihood of irreparable harm.” 636 F.3d 1166, 1173 (9th Cir.

2011). In Winter, the Supreme Court reversed a preliminary

injunction, stating that a movant is required to show “that irreparable

injury is likely in the absence of an injunction” and concluding that

“even if plaintiffs [proved] irreparable injury . . . any such injury is

outweighed by the public interest and the [defendant] Navy’s interest in

effective, realistic training of its sailors.” 555 U.S. at 22-23.

An injunction also “must be narrowly tailored ‘to affect only those

persons over which [the Court] has power,’ . . . and to remedy only the

specific harms shown by the plaintiffs, rather than ‘to enjoin all possible

breaches of the law.’” Price, 390 F.3d at 1117 (quoting Zepeda v. INS,


11

753 F.2d 719, 727-28 n.1 (9th Cir. 1983)).7 “An overb[roa]d injunction is

an abuse of discretion.” Park Vill. Apartment Tenants Ass’n, 636 F.3d

at 1160 (citation omitted). Moreover, “[t]he seriousness of federal

judicial interference with state civil functions has long been

recognized,” and courts have “consistently required that when federal

courts are confronted with requests for such relief, they should abide by

standards of restraint that go well beyond those of private equity

jurisprudence.” Huffman, 420 U.S. at 603.

A. NAF Did Not Show A Likelihood of Irreparable Harm From CMP’s Disclosure to Law Enforcement Agencies.

NAF did not show the required likelihood of irreparable harm to

justify enjoining disclosure to government officers or agencies with

power to investigate wrongdoing. Nor did the District Court ever find

such harm from disclosure to law enforcement. (See ER35-38.) The

harm NAF identified was “harassment and death threats” by members

of the public directed at individuals appearing in videos publicly

released thus far. (Dkt. No. 234-3 at 23.) NAF predicted that its

7 See also State of Nebraska Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (recognizing that “‘[a]n injunction must be narrowly tailored to remedy the specific harm shown’” and collecting cases (citation omitted)).


12

employees and members would continue to suffer such harm if CMP

released additional video and audio recorded at NAF’s annual meetings.

(Id.) This is consistent with the District Court’s findings. (ER36

(finding likely “increase in harassment, threats, . . . incidents of

violence” and “hav[ing] to expend more effort and money to implement

additional security measures” “[i]f the NAF materials were publicly

released”).)

As CMP noted in its opposition to the motion for preliminary

injunction (Dkt. 265-2 at 44-45), NAF must “prove a ‘causal connection’

between the irreparable injury [it] faces and the conduct [it] hopes to

enjoin.” Garcia, 786 F.3d at 748 (Watford, J., concurring in the

judgment) (citing Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 982 (9th

Cir. 2011)). As Judge Watford explained, this also requires the movant

to show that granting the requested injunctive relief “would likely

eliminate (or at least materially reduce)” the irreparable harm. Id.

Here, NAF did not show, or even suggest, that “harassment and

death threats” are likely to result from disclosure to law enforcement,

and instead simply pointed to a “leak” by a third party that coincided

with disclosure to Congress. (Dkt. No. 292-3 at 26.) Similarly, NAF has


13

never argued that restricting disclosure to law enforcement (except

pursuant to a subpoena and with prior notice to NAF) will eliminate or

materially reduce such harm.

As the District Court reasoned with respect to the Congressional

subpoena in this case, disclosure to a state Attorney General cannot

even be considered “public disclosure” in the first place. (Dkt. 155 at 2.)

The disclosure is subject to the confidentiality provisions of state law.

See, e.g., Ariz. Rev. Stat. § 44-1525 (relating to confidentiality of

information provided to the Attorney General); see also City of Riviera

Beach v. State, 82 So. 3d 198, 199 (Fla. Dist. Ct. App. 2012) (refusing to

quash Attorney General subpoena for confidential information from

municipality because, in part, “[t]he issue here is not public disclosure”);

Crowley Foods, Inc. v. Lefkowitz, 428 N.Y.S.2d 81, 84 (N.Y. App. Div.

1980) (finding “no merit” to claim that attorney general subpoena

should be quashed “because it requires disclosure of trade secrets”); In

re Bd. of Med. Review Investigation, 463 A.2d 1373, 1375-76 (R.I. 1983)

(affirming an agency subpoena to obtain otherwise confidential

information related to an unprofessional conduct investigation of a


14

physician because, in part, “preliminary investigations are

confidential”).

Moreover, law enforcement regularly handles highly sensitive

materials, such as the identity of informants, information regarding

gangs and organized crime, and the location of domestic violence

victims. If law enforcement cannot be trusted to handle information

with the potential to risk bodily harm or even death if it falls into the

wrong hands, then it simply cannot do its job.

In this case, multiple law enforcement agencies, as well as a

congressional committee, courts, and a grand jury, already possess (in

varying amounts) information covered by the PI. The FBI apparently

received information regarding threats, which would presumably

include names and/or addresses of NAF members, one of the categories

of information CMP is enjoined from disclosing to the extent it was

learned at NAF meetings. (See Dkt. No. 311, 12/18/2015 Hr’g Tr. at 34-

35 (discussing FBI investigation of threats); ER42.) The California

Attorney General has apparently seized the video and audio recordings

in Mr. Daleiden’s possession as part of its investigation, and thus


15

possesses most if not all of the enjoined recordings.8 The PI also noted

previous disclosures to law enforcement in El Dorado County, California

and in Texas. (ER16.) In response to the subpoena it issued to CMP,

Arizona received 100 hours of materials outside the scope of both the

TRO and PI and a small amount of materials (totaling approximately 1

hour) covered by the PI, which NAF agreed to allow CMP to disclose

after CMP provided notice. No evidence in the record suggests that law

enforcement and other government entities are unable to maintain the

confidentiality of this information and disclose it only pursuant to a

legitimate government purpose.9

For all of these reasons, NAF did not show a likelihood of

irreparable harm to justify enjoining disclosure by CMP—whether

pursuant to subpoenas or voluntarily—to government officers or

agencies that are empowered to investigate wrongdoing. 8 See, e.g., Megan Cassella, California Officials Seize Computers, Footage from Anti-abortion Activist, REUTERS, Apr. 6, 2016, http://www.reuters.com/article/plannedparenthood-california-idUSL2N1791X2

9 Given that the restricted material has been disclosed to or seized by several law enforcement and other government agencies, any generalized concern regarding security for NAF and its members resulting from disclosure to law enforcement already has been triggered and is not remedied by the PI.


16

B. The Public Interest Strongly Favors Law Enforcement’s Right to Exercise Investigative Powers.

Restricting disclosure to law enforcement agencies is also contrary

to the compelling public interest in law enforcement’s investigations of

potential wrongdoing. By not concluding that the public interest in free

communication with law enforcement precluded enjoining such

communications, the District Court erred for three reasons: 1) public

policy strongly favors the free disclosure of information to law

enforcement; 2) the court did in fact place meaningful restrictions on

CMP’s ability to disclose information to law enforcement; and 3) the

court’s limiting principles will not distinguish this case from future

cases, and instead the PI invites federal court challenges to state

investigations in many different contexts. For these reasons, the

injunction should be reversed. See Winter, 555 U.S. at 23 (reversing

injunction in part because public interest outweighed harm).

1. Public Policy Strongly Favors Free Communication With Law Enforcement.

The District Court correctly recognized that “public policy may

well support the release” of records to law enforcement. (ER33); see

also Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853

(10th Cir. 1972) (“It is public policy . . . everywhere to encourage the


17

disclosure of criminal activity . . . .”). The District Court erred, however,

by recognizing the public policy only as to recordings that “defendants

believe show criminal wrongdoing.” (ER33.) The public policy interest

is actually broader and includes any matter in which a government

agency has a legitimate interest in investigating, whether criminally or

civilly. Cf. Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1317

(9th Cir. 2015) (noting that “the Attorney General has a compelling

interest in enforcing the laws of California”); United States v. Institute

for College Access & Success, 27 F. Supp. 3d 106, 115, n.8 (D.D.C. 2014)

(presuming compelling interest exists where “agency seeking the

information is conducting an investigation pursuant to its statutory

authority”) (citing FEC v. Machinists Non-Partisan Political League,

655 F.2d 380, 389 (D.C. Cir. 1981)). Indeed, the District Court

specifically recognized that In re JDS Uniphase Corp. Securities

Litigation, 238 F. Supp. 2d 1127 (N.D. Cal. 2002), a private securities

fraud case, “may have some persuasive value with respect to the

interests of the Attorney General amici.” (ER24.) Therefore, this Court

should recognize the important public policy contravened by restricting


18

CMP’s free communication with law enforcement and that it extends

beyond communications showing criminal wrongdoing.

2. The District Court Did In Fact Restrict CMP’s Communications to Law Enforcement.

The public policy interests described above preclude the

restrictions that the District Court imposed on CMP. Restricting CMP’s

ability to communicate with law enforcement regarding certain

matters—by requiring disclosure only pursuant to a subpoena and

requiring CMP to provide NAF prior notice and opportunity to review

(see ER2, 40-41; Dkt. No. 132 at 1-2); see also note 5, supra—was a

meaningful limitation that required satisfying the test for injunctive

relief. The Supreme Court has stated, it is “[e]specially debatable” that

a person “may obtain a restraining order preventing voluntary

compliance by a third party with an administrative subpoena” and

noted that it has “never before expressly so held.” O’Brien, 467 U.S. at

749; see also Chen Chi Wang v. United States, 757 F.2d 1000, 1004 (9th

Cir. 1985) (“[T]here is no constitutional requirement that a federal

administrative agency notify ‘targets’ of nonpublic investigations when

the agency issues subpoenas to third parties.”). The Court also squarely

rejected the notion that prior notice to persons other than the recipients


19

of investigative subpoenas is a workable requirement, and further noted

this would permit investigative targets to impede investigations.

O’Brien, 467 U.S. at 749-51.10 In legal contexts involving

whistleblowers or confidential informants, injunctive relief empowering

a party to inhibit information sharing with law enforcement would

severely harm law enforcement’s ability to investigate effectively.

The concerns expressed by the Supreme Court in O’Brien apply

with equal force to state investigations under principles of federalism

and comity. The Supreme Court has “consistently required that when

federal courts are confronted with requests for such relief, they should

abide by standards of restraint that go well beyond those of private

equity jurisprudence” given “[t]he seriousness of federal judicial

interference with state civil functions.” Huffman, 420 U.S. at 603.

10 Attorney General investigations regularly seek materials from sources other than investigative targets. A more expansive approach is essential for gathering evidence, following leads, and corroborating or disproving stories. CUNA Mut. Ins., 404 N.E.2d at 1222 (rejecting “argument that the Attorney General may issue a C.I.D. only to a person being investigated”); State ex rel. Miller v. Publishers Clearing House, Inc., 633 N.W.2d 732, 736-38 (Iowa 2001) (describing Attorney General investigative powers as broad and plenary and recognizing that “‘[t]he only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so’”) (quoting Morton Salt, 338 U.S. at 642-43)).


20

State investigations seek to protect the public as a whole, which weighs

heavily against the decision to grant injunctive relief in this case. See

Buckwalter v. Nev. Bd. of Medical Examiners, 678 F.3d 737, 747 (9th

Cir. 2012) (investigations of healthcare regulatory violations “implicate

[an] important state interest”); see also New Motor Vehicle Bd. v. Orrin

W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)

(“[A]ny time a State is enjoined by a court from effectuating statutes

enacted by representatives of its people, it suffers a form of irreparable

injury.”); Comm. in Solidarity with El Salvador v. Sessions, 705 F.

Supp. 25, 30 (D.D.C. 1989) (alleged constitutional injury was

outweighed by the “equally valid[] interest in effective police

investigation” (emphasis omitted)).

The District Court also misapprehended the correct legal standard

when it focused on whether state Attorneys General had intervened as

parties (ER34) rather than whether the injunctive factors supported

enjoining CMP from making disclosures to law enforcement. See Price,

390 F.3d at 1117 (an injunction “must be narrowly tailored ‘to affect

only those persons over which [the Court] has power’ and to remedy

only the specific harms shown by the plaintiffs, rather than ‘to enjoin all


21

possible breaches of the law’” (citation omitted)). With respect to

disclosures to law enforcement, “any [likelihood of irreparable] injury is

outweighed by the public interest,” and therefore injunctive relief

covering this activity was not proper. See Winter, 555 U.S. at 23.

Whether state Attorneys General intervened as parties is irrelevant.11

Finally, the restrictions the District Court established in the TRO

and PI have had a detrimental effect on the progress of at least one

state investigation. CMP recorded hundreds of hours of raw audio and

video footage related to NAF meetings. (ER8.) Within that universe of

materials, CMP has identified 47 hours of video and 100 hours of audio

recordings responsive to the Arizona subpoena, including contextual

information necessary for the information to be sufficiently meaningful.

NAF takes a starkly different position, refusing to consent to CMP’s

disclosure of responsive materials except for snippets of materials

specifically involving conversations with Arizona abortion providers or

11 It is also worth noting that Amici consistently opposed these restrictions. Several state Attorneys General filed a Memorandum of Law as amici, supporting CMP’s request to clarify the scope of the TRO with respect to disclosures to law enforcement. (Dkt. No. 99-1.) When NAF moved for a preliminary injunction, a larger group of Attorneys General again filed a Memorandum of Law as amici opposing NAF’s requested relief. (Dkt. No. 285.)


22

other companies identified to NAF by Arizona in the course of

negotiations regarding Arizona’s subpoena. NAF is thus improperly

imposing its own “relevance” standard within responsive files. This

imposition is especially inappropriate for two reasons. First, NAF does

not even know—nor should it know—the persons or entities being

investigated by the Arizona Attorney General’s Office. Second, the

Arizona Attorney General’s Office is not in a position to know what

other information it would learn if it had access to the full, responsive

audio and video files.

As long as the PI is in place, NAF can continue screening

information and wielding influence over government investigations.

This is clear from the record. There is no evidence that NAF sought any

restrictions regarding investigations by the FBI or the California

Department of Justice, yet NAF has objected regarding a congressional

subpoena and subpoenas from Arizona and Louisiana. Allowing NAF to

pick and choose which government agencies can access CMP’s

information directly conflicts with the Supreme Court’s reasoning in

O’Brien, 467 U.S. at 749-51, and imperils the effective functioning of

the investigative process.


23

3. The Court’s Limiting Principles Do Not Work.

The District Court’s factual distinctions will not limit the future

influence of its ruling, and therefore the PI creates troubling precedent

that invites additional federal-court challenges to state investigations.

First, the court opined, based on its own review, that the enjoined

materials did not show evidence of criminal wrongdoing. (ER2, 30-31,

33 & n.34.) Relatedly, the Court found that CMP had released

“misleading ‘highlight’ videos” and would likely do so in the future.

(ER36-37 & n.42, 38 n.43.) The Court also found that “defendants did

not promptly turn over those recordings to law enforcement.” (ER34-

35.) Second, the court attempted to distinguish CMP’s actions by

focusing on “exceptional facts,” including the confidentiality agreements

at issue and the actions by CMP to gain entry into NAF’s meetings.

(ER38 n.43, 39 n.44.) Neither of these provides a workable limiting

principle.12

As a preliminary matter, the District Court’s review of the

recordings provides no adequate basis for overriding the strong public

12 Although these distinctions may also be problematic in other contexts, this discussion is limited to how they relate to the PI’s restrictions on communications with law enforcement.


24

policy of permitting open communication with law enforcement. The

District Court appeared to concede this much. It stated that “public

policy may well support the release” of records to law enforcement and

“recognize[d] that law enforcement agencies may want to review the

information at issue themselves in order to make their own

assessment.” (ER33 & n.34.) The District Court is without full

knowledge of what law enforcement is investigating (civilly or

criminally). Similarly, whether the public disclosures by CMP are

“misleading,” in the court’s opinion, is irrelevant to whether CMP

should be restrained from communicating with law enforcement. This

is particularly so because the PI’s effect concerning law enforcement is

to limit what is turned over, precluding law enforcement from

evaluating entire video and audio files. CMP’s promptness in providing

recordings to law enforcement is, again, not relevant. (See Brief for

Appellants at 58-59.) Therefore, these alleged grounds are not bases for

enjoining communications with law enforcement.

Second, the existence of confidentiality agreements and the

lengths of CMP’s actions to gain entry to NAF’s meetings are also not

bases for restricting communications with law enforcement. As the


25

Supreme Court recognized in O’Brien, “when a person communicates

information to a third party even on the understanding that the

communication is confidential, he cannot object if the third party

conveys that information or records thereof to law enforcement

authorities.” 467 U.S. at 743 (emphasis added) (citing Miller, 425 U.S.

at 443); see also Wang, 757 F.2d at 1004 (“[T]here is no constitutional

requirement that a federal administrative agency notify ‘targets’ of

nonpublic investigations when the agency issues subpoenas to third

parties.”); Hagberg v. Cal. Fed. Bank FSB, 81 P.3d 244, 249 (Cal. 2004)

(discussing “official proceeding privilege” under California law and

noting “many cases have held that [it] applies to a communication

intended to prompt an administrative agency charged with enforcing

the law to investigate or remedy a wrongdoing”).13

13 The sole case cited by NAF to support its position, Vringo, Inc. v. ZTE Corp., No. 14-4988, 2015 WL 3498634 (S.D.N.Y. June 3, 2015), (Dkt. No. 292-3 at 25), is inapposite. Its focus was the use of information in private litigation, and it did not directly analyze the issue of enjoining voluntary disclosure to law enforcement. See id. at *7-*8. It also involved documents turned over in the course of settlement discussions, which implicates the public policy of encouraging parties to settle disputes. Id. at *7, *9. Given Vringo’s inapplicability, it is unsurprising that the District Court did not rely on it. (See ER1-42.)


26

The PI thus establishes a troubling precedent, inviting additional

federal court challenges to scores of civil investigative demands and

subpoenas issued every year by state Attorneys General across the

county and needlessly consuming scarce judicial resources. Cf. United

States v. Dionisio, 410 U.S. 1, 17 (1973) (“Any holding that would saddle

a grand jury with minitrials and preliminary showings would assuredly

impede its investigation and frustrate the public’s interest in the fair

and expeditious administration of the criminal laws.”); United States v.

Golden Valley Elec. Ass’n, 689 F.3d 1108, 1115-16 (9th Cir. 2012)

(noting “[g]rand jury and administrative subpoenas function in similar

ways”).14 The Fifth Circuit recently rejected one such challenge, finding

that neither the issuance of an administrative subpoena nor the

possibility of a future enforcement action created an imminent threat of

irreparable injury ripe for adjudication in federal court. Google, Inc. v.

Hood, No. 15-60205, __ F.3d __, 2016 WL 1397765, at *11 (5th Cir. Apr.

8, 2016). Forty state Attorneys General filed an amicus brief

14 The District Court apparently placed no restrictions on Mr. Daleiden’s testimony before a grand jury in Texas without NAF present and without having to first give NAF notice of what he intended to say. (ER41 n.45.) Therefore, the District Court’s restrictions with respect to administrative subpoenas are inconsistently applied.


27

supporting the Mississippi Attorney General and underscoring the

importance of permitting state Attorneys General to exercise their

investigative authority. Amici Curiae Brief in Support of Miss.’s

Interlocutory Appeal, Google Inc., __ F.3d __, 2016 WL 1397765 (No. 15-

60205), 2015 WL 4094982. Here, the PI creates a similar risk of

thwarting legitimate law enforcement investigations in many different

contexts.

The District Court’s reasoning in granting the PI would allow any

group of individuals desiring to shield communications from law

enforcement to merely enter into confidentiality agreements and use

the federal courts to short circuit government investigations. A price-

fixing cartel, for example, could make its members sign confidentiality

agreements and then have that agreement enforced. This is clearly an

absurd result and contrary to the public interest law enforcement is

sworn to protect. Instead, the District Court recognized “a line of cases

where courts have refused to enforce, or excused compliance with,

otherwise applicable confidentiality agreements for the limited purpose

of allowing cooperation with a specified law enforcement investigation.”


28

(ER33.)15 The District Court “d[id] not disagree with the analysis and

results in those cases.” (Id.) It therefore should have held that the

public interest outweighed enjoining CMP’s communications with law

enforcement. See Winter, 555 U.S. at 23.

CONCLUSION

Amici request that this Court reverse the District Court’s entry of

the PI against CMP. Alternatively, Amici request that this Court

reverse the PI to the extent it relates to disclosure of materials in

compliance with lawfully issued subpoenas, other requests from law

enforcement, and CMP’s voluntary disclosures to law enforcement.

15 A case cited by the District Court (at ER33), Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1062 n.15 (9th Cir. 2011), is not to the contrary. Cafasso merely stated that being in contact with government investigators did not automatically excuse a breach of contract claim against a qui tam relator. Id. It does not stand for the proposition that communications with law enforcement are not in the public interest and did not discuss the propriety of injunctive relief. To the contrary, this Court “s[aw] some merit in the public policy exception that Cafasso propose[d],” but determined it need not “decide whether to adopt it here.” Id. at 1062.


29

April 25, 2016

ALSO SUPPORTED BY:

Respectfully Submitted,

/s/ Maria M. Syms . Mark Brnovich Attorney General Maria M. Syms Brunn W. Roysden III Evan G. Daniels Assistant Attorneys General OFFICE OF THE ARIZONA ATTORNEY

GENERAL 1275 W. Washington Street Phoenix, Arizona 85007 (602) 542-5025 Counsel for Amicus Arizona Attorney General

LUTHER STRANGE ATTORNEY GENERAL OF ALABAMA 501 Washington Ave. Montgomery Alabama 36130

LESLIE RUTLEDGE ATTORNEY GENERAL OF ARKANSAS 323 Center Street, Suite 200 Little Rock, Arkansas 72201

SAM OLENS ATTORNEY GENERAL OF GEORGIA 40 Capitol Square, SW Atlanta, Georgia 30334

JEFF LANDRY ATTORNEY GENERAL OF LOUISIANA P.O. Box 94005 Baton Rouge, LA 70804-9005

BILL SCHUETTE MICHIGAN ATTORNEY GENERAL P. O. Box 30212 Lansing, Michigan 48909


30

TIMOTHY C. FOX ATTORNEY GENERAL OF MONTANA P.O. Box 200151 Helena, Montana 59620

DOUGLAS J. PETERSON ATTORNEY GENERAL OF NEBRASKA 2115 State Capitol Lincoln, Nebraska 68509

ADAM PAUL LAXALT ATTORNEY GENERAL OF NEVADA 100 North Carson Street Carson City, Nevada 89701

E. SCOTT PRUITT ATTORNEY GENERAL OF OKLAHOMA 313 N.E. 21st Street Oklahoma City, Oklahoma 73105-4894

ALAN WILSON ATTORNEY GENERAL OF SOUTH CAROLINA P.O. Box 11549 Columbia, South Carolina 29211

KEN PAXTON ATTORNEY GENERAL OF TEXAS P.O. Box 12548 Austin, Texas 78711-2548

SEAN D. REYES ATTORNEY GENERAL OF UTAH P.O. Box 142320 Salt Lake City, Utah 84114-2320

BRAD D. SCHIMEL ATTORNEY GENERAL OF WISCONSIN P.O. Box. 7857 Madison, Wisconsin 53707-7857


CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App.

P. 29(d) because it is no more than one-half the maximum length

authorized for a party’s principal brief, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) because this brief has been prepared in a proportionally

spaced typeface using Microsoft Word 2010 in 14-point Century

type.

/s/ Maria M. Syms . Maria M. Syms OFFICE OF THE ARIZONA ATTORNEY

GENERAL 1275 W. Washington Street Phoenix, Arizona 85007 (602) 542-5025


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on April 25, 2016. All

participants in the case are registered CM/ECF users and will be served

by the appellate CM/ECF system.

/s/ Maria M. Syms . Maria M. Syms OFFICE OF THE ARIZONA ATTORNEY

GENERAL 1275 W. Washington Street Phoenix, Arizona 85007 (602) 542-5025


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