Jane Does 1-10 et al v. University of Washington et al, No. 2:2016cv01212 - Document 213 (W.D. Wash. 2020)
Court Description: Findings of Fact, Conclusions of Law, and ORDER granting Plaintiff's 206 Motion Reinstating the Preliminary Injunction as to Doe Plaintiffs 1, 2, and 6. Signed by Judge James L. Robart.(MW)
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Jane Does 1-10 et al v. University of Washington et al Doc. 213 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 1 of 33 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JANE DOES 1-10, et al., CASE NO. C16-1212JLR Plaintiffs, 11 v. 12 13 UNIVERSITY OF WASHINGTON, et al., 14 Defendants. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING PLAINTIFFS’ MOTION AND REINSTATING THE PRELIMINARY INJUNCTION AS TO DOE PLAINTIFFS 1, 2, AND 6 15 I. INTRODUCTION 16 Before the court is Plaintiffs Jane Does 1-10 and John Does 1-10’s (collectively, 17 “Doe Plaintiffs”) motion to reinstate the preliminary injunction as to Doe Plaintiffs 1, 2, 18 and 6. (See Mot. (Dkt. # 206).) Doe Plaintiffs’ motion follows the Ninth Circuit Court of 19 Appeal’s reversal and vacatur of this court’s preliminary injunction as to these three Doe 20 Plaintiffs based on insufficient evidentiary grounds. (See (3/25/20 9th Cir. Mem. (Dkt. 21 # 197) at 4.) Defendant David Daleiden opposes the motion. (Daleiden Resp. (Dkt. 22 ORDER - 1 Dockets.Justia.com Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 2 of 33 1 # 211).) Defendants University of Washington and Perry Tapper (collectively, “UW”) do 2 not take a substantive position on Doe Plaintiffs’ motion but seeks guidance from the 3 court concerning its obligations following the court’s resolution of Doe Plaintiffs’ 4 motion. (See generally UW Resp. (Dkt. # 210).) The court has considered the motion, 5 Mr. Daleiden’s and UW’s responses, the relevant portions of the record, and the 6 applicable law. Being fully advised, 1 the court GRANTS Doe Plaintiffs’ motion and 7 reinstates a preliminary injunction regarding Doe Plaintiffs 1, 2, and 6 based on their 8 more substantial evidentiary showing as more fully described below. 2 9 // 10 // 11 // 12 // 13 14 15 16 1 Mr. Daleiden asks for oral argument. (See Daleiden Resp. at title page.) The parties have fully briefed both the factual and legal issues. (See Mot.; UW Resp.; Daleiden Resp.; Reply (Dkt. # 212).) Further, as described herein, the court has considered the issues surrounding the preliminary injunction multiple times. See infra § II.A. As a result, the court does not consider oral argument to be helpful to its disposition of Doe Plaintiffs’ motion. See Local Rules W.D. Wash. LCR 7(b)(4). Accordingly, the court DENIES Mr. Daleiden’s request. 2 17 18 19 20 21 22 In accordance with Federal Rules of Civil Procedure 52(a) and 65(d), this order shall constitute the court’s findings of fact and conclusions of law setting forth the grounds for the reissuance of the preliminary injunction as to Doe Plaintiffs 1, 2, and 6. See Fed. R. Civ. P. 52(a); Fed. R. Civ. P. 65(d); see also A. H. R. v. Wash. State Health Care Auth., No. C155701JLR, 2016 WL 98513, at *1 n.4 (W.D. Wash. Jan. 7, 2016). Although the court has not labeled paragraphs specifically as findings of fact or conclusions of law, such labels are not necessary. The nature of the findings and conclusions that follow is apparent. See Tri–Tron Int’l v. A.A. Velto, 525 F.2d 432, 435-36 (9th Cir. 1975) (“We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it. . . . [T]he findings are sufficient if they permit a clear understanding of the basis for the decision of the trial court, irrespective of their mere form or arrangement”) (citations omitted); In re Bubble Up Delaware, Inc., 684 F.2d 1259, 1262 (9th Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality conclusions of law.”). ORDER - 2 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 3 of 33 1 2 II. A. 3 BACKGROUND Procedural Background The procedural background proceeding Doe Plaintiffs’ present motion is intricate 4 and involves multiple appeals. The court recounts the procedural background of this case 5 below. 6 On February 9, 2016, Mr. Daleiden issued a request to UW under Washington 7 State’s Public Records Act (“PRA”), RCW ch. 42.56, seeking to “inspect or obtain copies 8 of all documents that relate to the purchase, transfer, or procurement of human fetal 9 tissues, human fetal organs, and/or human fetal cell products at the [UW] Birth Defects 10 Research Laboratory from 2010 to present.” (Power Decl. (Dkt. # 5) ¶ 4, Ex. C (bolding 11 omitted).) On February 10, 2016, Defendant Zachary Freeman issued a similar PRA 12 request to UW. 3 (Id. ¶ 6, Ex. E.) Among other documents, these PRA requests sought 13 communications between UW or its Birth Defects Research Laboratory (“BDRL” or “the 14 Lab”), on the one hand, and Cedar River Clinics (“Cedar River”), Planned Parenthood of 15 Greater Washington and North Idaho, or certain individuals or employees of Cedar River 16 and Planned Parenthood of Greater Washington and North Idaho, on the other hand. (Id. 17 at 1; see also id. ¶ 4, Ex. C at 1-2.) Mr. Daleiden’s PRA request specifically lists the 18 names of eight such individuals. (Id. ¶ 4, Ex. C at 1-2.) 19 20 On July 21, 2016, UW notified Doe Plaintiffs that absent a court order issued by August 4, 2016, UW would provide documents responsive to Mr. Daleiden’s PRA 21 3 22 On December 27, 2016, the court entered a stipulated order dismissing Mr. Freeman from the lawsuit. (Stip. Ord. of Dismissal (Dkt. # 105).) ORDER - 3 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 4 of 33 1 request without redaction at 12:00 p.m. on August 5, 2016. (Does 1, 3-4, 7-8 Decls. (Dkt. 2 ## 6, 8-9, 12-13) ¶ 3, Ex. A; Doe 5 Decl. (Dkt. # 10) ¶ 3; Doe 6 Decl. (Dkt. # 11) ¶ 5, Ex. 3 A.) On July 26, 2016, UW issued a similar notice to Doe Plaintiffs regarding Mr. 4 Freeman’s request and indicated that, absent a court order, UW would provide responsive 5 documents without redaction on August 10, 2016. 4 (Does 1, 3-4 Decls. ¶ 4, Ex. B.) 5 6 On August 3, 2016, Doe Plaintiffs filed a complaint on behalf of a putative class 7 seeking to enjoin UW from issuing unredacted documents in response to the PRA 8 requests. (Compl. (Dkt. # 1).) Doe Plaintiffs object to disclosure of the requested 9 documents in unredacted form because the documents include personally identifying 10 information such as direct work phone numbers, work emails, personal cell phone 11 numbers, and other information. (See TAC (Dkt. # 77) at 2 (“Doe Plaintiffs . . . seek to 12 have their personal identifying information withheld to protect their safety and 13 privacy.”); 6 see also, e.g., Doe 5 Decl. ¶¶ 4-5 (“Any email contacts I had with [the Lab] 14 would have highly personal information such as my name, email address, and phone 15 4 16 17 18 19 20 21 22 Under RCW 42.56.540, “[a]n agency has the option of notifying persons named in the record or to whom a record specifically pertains” prior to disclosure. 5 Jane Doe 2 omitted exhibits from her declaration, but the other Doe declarations sufficiently demonstrate that UW issued similar letters to the individuals implicated in the relevant PRA request. (See Doe 2 Decl. (Dkt. # 7).) 6 Doe Plaintiffs also filed an amended complaint and a second amended complaint on August 3, 2016. (See FAC (Dkt. # 22); SAC (Dkt. # 23).) Doe Plaintiffs’ amended complaint amends allegations concerning jurisdiction and venue. (Compare Compl. ¶¶ 17-18 (alleging jurisdiction under RCW 2.08.010 and RCW 4.28.020 and venue under RCW 42.56.540), with FAC ¶¶ 17-18 (alleging jurisdiction under 28 U.S.C. § 1331 and venue under 28 U.S.C. § 1391(b)(2)).) Doe Plaintiffs’ second amended complaint corrects what appear to be typographical errors in paragraph 18 of the amended complaint relating to venue. (Compare FAC ¶ 18, with SAC ¶ 18.) ORDER - 4 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 5 of 33 1 number. . . . My name, email address, and phone number are information that I try to 2 keep private when related to where I work.”).) 3 On the same day that they filed suit, Doe Plaintiffs filed a motion seeking both a 4 temporary restraining order (“TRO”) and a preliminary injunction against disclosure of 5 the requested documents. 7 (See TRO/PI Mot. (Dkt. # 2).) In addition, Doe Plaintiffs 6 filed a motion for class certification. (See MFCC (Dkt. # 16).) Doe Plaintiffs asked the 7 court to certify a class consisting of “[a]ll individuals whose names and/or personal 8 identifying information (work addresses, work or cell phone numbers, email addresses) 9 are contained in documents prepared, owned, used, or retained by UW that are related to 10 fetal tissue research or donations.” (Id. at 2.) 11 On August 3, 2016, the court granted Doe Plaintiffs’ motion for a TRO but set the 12 TRO to expire on August 17, 2016, at 11:59 p.m. (TRO (Dkt. # 27) at 7.) The court 13 restrained UW “from releasing, altering, or disposing of the requested documents or 14 disclosing the personal identifying information of [Doe] Plaintiffs pending further order 15 from this court.” (Id. at 7.) On August 17, 2016, the court extended the TRO “until such 16 time as the court resolves [Doe] Plaintiffs’ pending motion for a preliminary injunction.” 17 (8/17/16 Order (Dkt. # 54) at 2.) 18 // 19 // 20 // 21 22 7 On the same day, Doe Plaintiffs also filed a motion to proceed in pseudonym. (MTPP (Dkt. # 15).) Defendants did not oppose the motion (see generally Dkt.), and the court granted it on August 29, 2016 (8/29/16 Order (Dkt. # 68)). ORDER - 5 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 6 of 33 1 On November 11, 2016, the court granted Doe Plaintiffs’ motion for a preliminary 2 injunction. 8 (PI Ord. (Dkt. # 88).) The court concluded that Doe Plaintiffs were likely to 3 succeed on the merits of their claim that disclosure of their personally identifying 4 information would render them and those similarly situated uniquely vulnerable to 5 harassment, shaming, stalking, or worse, and in this context, would violate their First 6 Amendment rights to freedom of expression and association. (Id. at 18-19.) Thus, the 7 court also concluded that Doe Plaintiffs were “likely to succeed on the merits of their 8 claim that their personally identifying information is exempt from disclosure under the 9 PRA.” (Id. at 19.) After finding that the remaining factors—irreparable injury, the 10 public interest, and the balance of equities—also favored preliminary injunctive relief, 11 the court granted Doe Plaintiffs’ motion but narrowed the scope of the injunctive relief it 12 granted as compared to the relief granted in the TRO. (See id. at 19-22, 25.) 13 In the preliminary injunction, the court did not prohibit the release of the 14 documents at issue but rather enjoined UW from releasing the requested documents 15 without first redacting all personally identifying information or information for Doe 16 8 17 18 19 20 21 22 Before the court could resolve Doe Plaintiffs’ motion for a preliminary injunction, Mr. Daleiden filed a motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. (See MTD (Dkt. # 49).) On October 4, 2016, the court granted Mr. Daleiden’s motion and dismissed Doe Plaintiffs’ second amended complaint without prejudice for lack of subject matter jurisdiction. (10/4/16 Order (Dkt. # 76) at 12-14.) The court also granted Doe Plaintiffs leave to file a third amended complaint that remedied the jurisdictional deficiencies identified in the court’s order. (Id. at 14-18.) Doe Plaintiffs timely filed their third amended complaint on October 18, 2016 (see TAC), and the court concluded that Doe Plaintiffs’ third amended complaint satisfied the directives of its October 4, 2016, order with respect to subject matter jurisdiction (see PI Order at 5). Doe Plaintiffs’ third amended complaint also added Defendant Perry Tapper, who is a records compliance officer in UW’s Office of Public Records and Open Meetings (“OPR”). (See TAC ¶ 12; Supp. Tapper Decl. (Dkt. # 121) ¶ 2.) As noted above, the court refers to UW and Mr. Tapper collectively as “UW.” ORDER - 6 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 7 of 33 1 Plaintiffs from which a person’s identity could be derived with reasonable certainty. (Id. 2 at 19-21, 25.) Specifically, the court held that UW was required to redact all personally 3 identifying information, including but not limited to (a) information that identifies or 4 provides the location of an individual, (b) information that would allow an individual to 5 be identified or located, (c) information that would allow an individual to be contacted, 6 (d) names of individuals, (e) phone numbers, (f) facsimile numbers, (g) email and mailing 7 addresses, (h) social security or tax identification numbers, and (i) job titles. (Id. at 25- 8 26.) 9 Pursuant to the court’s preliminary injunction, UW produced redacted records to 10 Mr. Daleiden in two stages and completed its production on September 8, 2017. (See 11 Supp. Tapper Decl. ¶¶ 3-14.) Stage 1 of the production of documents consisted of 1,678 12 pages, and stage 2 consisted of 3,489 pages. (Id. ¶¶ 5, 14.) 13 On December 15, 2016, Mr. Daleiden filed a notice appealing “the district court’s 14 grant of a preliminary injunction prohibiting disclosure of ‘all personally identifying 15 information or information from which a person’s identity could be derived with 16 reasonable certainty.’” (See 8/14/17 9th Cir. Mem. (Dkt. # 113) at 2 (quoting PI Order at 17 25); see also 12/15/16 Not. of App. (Dkt. # 98).) On January 4, 2017, this court stayed 18 proceedings at the district court level, except for purposes of enforcing and administering 19 the preliminary injunction, pending the resolution of Mr. Daleiden’s appeal. (1/4/17 Min. 20 Entry (Dkt. # 109).) 21 On August 14, 2017, the Ninth Circuit reversed and remanded the court’s 22 preliminary injunction order but nevertheless left the preliminary injunction in place for ORDER - 7 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 8 of 33 1 120 days “to allow the district court to enter the necessary findings of fact and 2 conclusions of law supporting injunctive relief.” (8/14/17 9th Cir. Mem. at 4.) In its 3 order, the Ninth Circuit stated that “[t]o prevail on the First Amendment claim, . . . Doe 4 Plaintiffs must show that particular individuals or groups of individuals were engaged in 5 activity protected by the First Amendment and ‘show “a reasonable probability that the 6 compelled disclosure of personal information will subject”’ those individuals or groups 7 of individuals ‘to threats, harassment, or reprisals’ that would have a chilling effect on 8 that activity.” (8/14/17 9th Cir. Mem. at 3 (citing John Doe No. 1 v. Reed, U.S. 186, 200 9 (2010) and quoting Buckley v. Valeo, 424 U.S. at 1, 74 (1976) (brackets omitted)) 10 (footnote omitted).) The Ninth Circuit agreed “that there may be a basis for redaction 11 where disclosure would likely result in threats, harassment, and violence,” but determined 12 that “the [district] court’s order did not address how the Doe Plaintiffs have made the 13 necessary clear showing with specificity as to the different individuals or groups of 14 individual who could be identified in the public records.” (Id.) The Ninth Circuit also 15 determined that this court “made no finding that specific individuals or groups of 16 individuals were engaged in activity protected by the First Amendment and what that 17 activity was.” (Id. at 3-4.) Accordingly, the court remanded the proceeding “to address 18 how disclosure of specific information would violate the constitutional or statutory rights 19 of particular individuals or groups.” (Id. at 4.) 20 On August 22, 2017, the court lifted its prior stay and ordered Doe Plaintiffs, UW, 21 and Mr. Daleiden to file supplemental memoranda responding to the Ninth Circuit’s 22 guidance. (See 8/22/17 Order (Dkt. # 114) at 1 n.1, 4-5.) After receiving the parties’ ORDER - 8 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 9 of 33 1 supplemental submissions, on November 30, 2017, the court reissued the preliminary 2 injunction as to all Doe Plaintiffs based on guidance in the Ninth Circuit’s August 14, 3 2017, ruling. (See 2d PI Order (Dkt. # 130).) 4 On December 7, 2017, Mr. Daleiden filed a motion seeking clarification that the 5 preliminary injunction did not require the redaction of non-personal corporate 6 information. (Mot. to Clarify (Dkt. # 131).) On December 14, 2017, Doe Plaintiffs filed 7 a notice re-noting their motion for class certification and a motion for summary judgment 8 and entry of a permanent injunction. (12/14/17 Notice (Dkt. # 133); MSJ (Dkt. # 135).) 9 Before the parties could fully brief these motions, however, Mr. Daleiden filed a second 10 notice of appeal to the Ninth Circuit. (2d Not. of App. (Dkt. # 147).) On January 17, 11 2018, the court issued an order staying its consideration of Doe Plaintiffs’ motion for 12 summary judgment pending Mr. Daleiden’s appeal but allowing the parties to engage in 13 discovery and further indicating that it intended to rule on Doe Plaintiffs’ motion for class 14 certification as well as Mr. Daleiden’s motion for clarification of the preliminary 15 injunction. (1/17/18 Order (Dkt. # 153).) 16 On February 26, 2018, the court granted Mr. Daleiden’s motion to clarify the 17 preliminary injunction. (See 2/26/28 Order (Dkt. # 155).) Specifically, the court clarified 18 “that neither the preliminary injunction nor the reissued preliminary injunction require[d] 19 the redaction of non-personal corporate information, including corporate names, the 20 domain portion of work email addresses, and corporate physical addresses.” (Id. at 5 21 (footnote omitted).) 22 // ORDER - 9 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 10 of 33 1 On April 24, 2018, the court granted Doe Plaintiffs’ motion for class certification 2 under Federal Rule of Civil Procedure 23(b)(2), which applies whenever “the party 3 opposing the class has acted or refused to act on grounds that apply generally to the class, 4 so that the final injunctive relief or corresponding declaratory relief is appropriate 5 respecting the class as a whole.” (See 4/24/18 Order (Dkt. # 172)); see also Fed. R. Civ. 6 P. 23(b)(2). Ultimately, the court certified a class and three subclasses as follows: 7 8 9 10 11 All individuals whose names and/or personally identifying information (e.g., work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by the University of Washington that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the University of Washington Birth Defects Research Laboratory from 2010 to present, and who: (1) are associated with entities that provide abortions and/or make available fetal tissue to the Birth Defects Research Laboratory; 12 (2) are associated with the Birth Defects Research Laboratory; or 13 14 15 16 (3) are associated with medical researchers who use fetal tissue obtained from the Birth Defects Research Laboratory. (4/24/18 Order at 31.) On August 31, 2018, the parties stipulated to a second stay of the case pending the 17 conclusion of the appeal, and the court granted the stay. (8/31/18 Stip. (Dkt. # 191); 18 9/4/18 Stay Order (Dkt. # 192).) 19 On March 25, 2020, the Ninth Circuit issued an order affirming in part, reversing 20 in part, and vacating in part the court’s November 30, 2017, order reissuing the 21 preliminary injunction. (3/25/20 9th Cir. Mem. (Dkt. # 197).) The Ninth Circuit held 22 that “[t]o prevail on their First Amendment claim, . . . Doe Plaintiffs must show that ORDER - 10 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 11 of 33 1 particular individuals or groups of individuals were engaged in activity protected by the 2 First Amendment and a reasonable probability that the compelled disclosure of personal 3 information will subject those individuals or groups of individuals to threats, harassment, 4 or reprisals that would have a chilling effect on that activity.” (Id. at 3 (citing John Doe 5 No. 1 v. Reed, 561 U.S. 186, 200 (2010) and Buckley v. Valeo, 424 U.S. 1, 74 (1976)) 6 (internal quotation marks omitted).) The Ninth Circuit further held that this court did not 7 err in concluding that Doe Plaintiffs 3, 4, and 5 “were engaged in activity protected by 8 the First Amendment, as they each took part in or were associated with advocacy for 9 reproductive rights.” (Id. at 4 (citing NAACP v. Alabamam ex rel. Patterson, 357 U.S. 10 449, 462 (1958)).) In addition, the Ninth Circuit held that this court “did not err in 11 concluding that whether the research activities of Doe[ Plaintiffs] 7 and 8 constituted 12 First Amendment protected activity posed a serious question that goes to the heart of 13 [Doe Plaintiffs’] claims.” (Id. (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 14 312 (1978)).) 15 However, the Ninth Circuit held that this court “clearly erred in determining that 16 Doe[ Plaintiffs] 1, 2, and 6 were engaged in activity protected by the First Amendment.” 17 (Id.) Accordingly, the Ninth Circuit “reverse[d] and vacate[d] the preliminary injunction 18 with respect to Doe[ Plaintiffs] 1, 2, and 6,” but “affirmed in all other respects.” (Id.) In 19 so ruling with respect to Doe Plaintiffs 1, 2, and 6, the Ninth Circuit stated that “the court 20 relied solely on the exceedingly thin and generalized declarations of these Doe 21 [P]laintiffs, which fail to allege a particularized, personal link between the declarant and 22 a claimed protected activity.” (Id.) Thus, the Ninth Circuit reversed this court with ORDER - 11 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 12 of 33 1 respect to its ruling on Doe Plaintiffs 1, 2, and 6 solely on the basis of Doe Plaintiffs 1, 2, 2 and 6’s insufficient evidentiary showing. (See id.) 3 Following the Ninth Circuit’s remand, on June 4, 2020, Doe Plaintiffs filed a 4 motion to reinstate the preliminary injunction as to Doe Plaintiffs 1, 2, and 6. (See Mot.) 5 Mr. Daleiden opposes Doe Plaintiffs’ motion. (See Daleiden Resp.) UW does not 6 oppose the motion but asks the court for additional guidance following the court’s 7 resolution of the motion. (See UW Resp.) The parties have completed their briefing to 8 the court and Doe Plaintiffs’ motion is now ready for the court’s disposition. 9 B. New Facts Related to Doe Plaintiffs’ Motion to Reinstate the Preliminary Injunction for Doe Plaintiffs 1, 2, and 6 10 Along with their motion to reinstate the preliminary injunction as to Doe Plaintiffs 11 1, 2, and 6, Doe Plaintiffs 1, 2, and 6 filed supplemental declarations. (See Does 1, 2, and 12 6 Supp. Decls. (Dkt. ## 207-09).) In their supplemental declarations, Doe Plaintiffs 1, 2, 13 and 6 attempt to fill the evidentiary hole identified by the Ninth Circuit and provide the 14 necessary “particularized, personal link” to “a claimed protected activity,” which in this 15 case would be either taking part in or being associated with advocacy for reproductive 16 rights or research activities involving fetal tissue. (See 3/25/20 9th Cir. Mem. at 4.) 17 1. John Doe 1 18 In his supplemental declaration, John Doe 1 adds information not contained in his 19 initial declaration. (Compare Doe 1 Decl. with Doe 1 Supp. Decl.) For the first time, he 20 identifies himself as a pediatric pathologist. (Doe 1 Supp. Decl. ¶ 5.) He explains that he 21 works with Seattle Children’s Hospital Department of Laboratories (“SCH Diagnostic 22 ORDER - 12 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 13 of 33 1 Lab”), which is the regional center for laboratory diagnosis of pediatric disease. (Id.) 2 Due to its specialized expertise, SCH Diagnostic Lab performs autopsies of fetuses that 3 died in utero and that outside institutions refer to the SCH Diagnostic Lab. (Id. ¶ 6.) For 4 the first time, John Doe 1 explains the “significant research applications in the work that 5 [he] performs.” (Id. ¶ 7.) For example, he explains that the fetal autopsies he performs 6 attempt “to make a connection between the [fetus’s] pathology results and the [fetus’s] 7 in-utero studies,” such as ultrasound. (Id.) John Doe 1 explains that “beyond its benefits 8 in the individual case,” his “analysis often . . . can be used longitudinally to inform the 9 diagnosis of that particular malformation in other patients with similar conditions.” (Id.) 10 He also informs the court for the first time that the data he collects as a pediatric 11 pathologist “is utilized in many clinical studies.” (Id. ¶ 7.) 12 John Doe 1 also specifically connects his work as a pediatric pathologist to the 13 research performed by and through the UW Birth Defects Research Lab (“UWBDRL”) 14 for the first time. (Id. ¶ 9.) He attests that the SCH Diagnostic Lab, for which he works, 15 collaborates with UWBDRL when a parent consents to donate fetal tissue. (Id. ¶ 10.) 16 Specifically, he attests for the first time that, in his role, he coordinates the distribution of 17 the fetal tissue to UWBDRL after a fetal autopsy is complete. (Id.) He states that he 18 recalls 5-6 cases in which a parent has consented both to a fetal autopsy and fetal tissue 19 donation to UWBDRL. (Id. ¶ 14.) In these cases, surplus tissue from the autopsy that is 20 not required for diagnosis or other clinically necessary tests is retained for research. (Id.) 21 In his supplemental declaration, John Doe 1 informs the court that, if UWBDRL needs 22 and requests particular fetal tissue for its research purposes, he uses his professional ORDER - 13 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 14 of 33 1 judgment in his role as a pediatric pathologist to examine, obtain, and process the fetal 2 tissue specimen for distribution to UWBDRL for its research purposes. (Id.) 3 2. Jane Doe 2 4 In her supplemental declaration, Jane Doe 2 adds information not contained in her 5 initial declaration. (Compare Doe 2 Decl. with Doe 2 Supp. Decl.) For example, for the 6 first time, Jane Doe 2 informs the court that, until recently, she was a research scientist at 7 UW and worked at UWBDRL “to facilitate scholarly research using fetal tissue.” (Doe 2 8 Supp. Decl. ¶ 5.) UWBDRL is a laboratory and repository utilized “to collect, identify, 9 process and distribute fetal tissue for research purposes strictly to non-profit, academic 10 facilities around the country,” and it works with ten different clinics and hospitals 11 throughout Washington State to collect tissue for research purposes. (Id. ¶¶ 6-7.) For the 12 first time, Jane Doe 2 informs the court that, in her role, she “worked closely with these 13 participating clinics and hospitals,” who “would occasionally call [her] when a patient 14 elected to terminate her pregnancy.” (Id. ¶ 8.) Jane Doe 2 also explains that she “would 15 then travel to the site to counsel the patient on the option of fetal tissue donation.” (Id.) 16 Jane Doe 2 attests for the first time that she “travelled to clinical sites approximately 4-5 17 days a week for the purpose of collecting fetal tissue specimens to bring to the 18 [UW]BDRL for research purposes.” (Id. ¶ 9.) She also attests for the first time in her 19 supplemental declaration that, once she was back at UWBDRL, she “was responsible for 20 isolating the specific organs and/or tissue that the researchers required and overseeing the 21 transfer of the tissue to the researchers.” (Id.) 22 ORDER - 14 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 15 of 33 1 Jane Doe 2 also attests in her supplemental declaration that, in her role, she 2 “provided regular monitoring of the clinical sites to ensure they were in compliance with 3 the requirements of the Federalwide Assurance for the Protection of Human Subjects and 4 ensure[d] that staff members who consented subjects to research had completed either the 5 Collaborative Institutional Training Initiative research ethics and compliance training or 6 the Human Subjects Protections training offered through the [National Institutes of 7 Health (“NIH”)] Office of Extramural Research.” (Id. ¶ 11.) In addition, she newly 8 informs the court that she “provided regular monitoring of the clinical sites to ensure that 9 clinical staff were trained in the proper handling and processing of fetal tissue for 10 transport to the [UW]BDRL.” (Id.) 11 For the first time, Jane Doe 2 also details her role in reviewing application 12 materials for researchers to receive approval as recipients of fetal tissue from the 13 UWBDRL. (See id. ¶¶ 13-14.) Specifically, when research institutions apply to receive 14 fetal tissue for research purposes from UWBDRL, they “must submit an abstract along 15 with their application materials, providing the [UW]BDRL with the intended goal for the 16 research and how the donated fetal tissue would be utilized in support of that goal.” (Id. 17 ¶ 13.) Jane Doe 2 “review[s] the application materials and facilitate[s] the process for the 18 researchers to receive approval as recipients of the fetal tissue.” (Id. ¶ 14.) This work 19 includes “assisting with the . . . [NIH] and [UW’s Independent Review Board (“IRB”)] 20 applications, communicating with investigators regarding lab services, reviewing the 21 feasibility of the study design, and assisting with other institutional requirements (e.g., 22 Material Transfer Agreements).” (Id.) ORDER - 15 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 16 of 33 1 3. Jane Doe 6 2 In her supplemental declaration, Jane Doe 6 adds information not contained in her 3 initial declaration. (Compare Doe 6 Decl. with Doe 6 Supp. Decl.) Jane Doe 6 is a 4 genetic counselor in the Maternal Fetal Medicine Department at Evergreen Hospital 5 Medical Center (“Evergreen”). (Doe 6 Supp. Decl. ¶ 3.) For the first time, she informs 6 the court in her supplemental declaration that she has a bachelor’s degree in microbiology 7 and a master’s degree in genetic counseling. (Id.) She also newly informs the court that 8 she “work[s] with patients who have high risk pregnancies, primarily those who have a 9 family history of [a] genetic condition, who have had a test showing a high risk of a 10 genetic condition in the fetus or who have has an ultrasound showing a birth defect. (Id. 11 ¶ 4.) Jane Doe 6 counsels patients on all of their pregnancy options, including abortion 12 and continuing their pregnancies to term. (Id.) She coordinates care among a team of 13 medical providers for the remainder of the pregnancy. (Id.) In addition, if a patient is 14 unable to obtain a pregnancy termination procedure at Evergreen for any reason, Jane 15 Doe 6 is involved in referring the patient to another clinic, usually Cedar River [Clinics] 9 16 or All Women’s Care. (Id.) When patients are transferred to other clinics, she also 17 discusses the option of donating the fetal tissue through those clinics. (Id.) 18 Jane Doe 6 also informs the court for the first time in her supplemental declaration 19 that if a patient elects to terminate her pregnancy, she coordinates the termination 20 procedure. (Id. ¶ 5.) If a patient decides to terminate her pregnancy or if a patient suffers 21 9 22 Cedar River Clinics is a reproductive health care provider established in 1979. (Cantrell Decl. (Dkt. # 4) ¶ 2.) ORDER - 16 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 17 of 33 1 a fetal demise, Jane Doe 6 counsels the patient about the option of donating the fetal 2 remains to birth defects research. (Id.) She “assists the patient in navigating all the 3 options, including discussing how fetal tissue donation may benefit the patient directly 4 for future pregnancies or more broadly, others facing similar circumstances.” (Id.) 5 Sometimes these donations are made to UWBDRL and sometimes to a specific 6 researcher who is studying the specific genetic condition in the fetus. (Id.) 7 Jane Doe 6 also newly informs the court that she is one of the authorized providers 8 who may obtain informed consent from patients to donate fetal tissue for research, 9 including for research at UWBDRL. (Id. ¶ 6.) She is also one of the genetic counselors 10 involved in counseling patients who obtain pregnancy termination procedures through 11 Evergreen’s Maternal-Fetal Medicine Department. (Id.) In her role as a genetic 12 counselor, she also communicates with UWBDRL “to coordinate the collection or 13 transport of fetal tissue to [UWBDRL] for processing.” (Id.) 14 15 16 III. A. ANALYSIS Standards for Entry of a Preliminary Injunction “A preliminary injunction is ‘an extraordinary remedy that may only be awarded 17 upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y 18 of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def. 19 Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish 20 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 21 absence of preliminary relief, that the balance of equities tips in his favor, and that an 22 injunction is in the public interest.” Winter, 555 U.S. at 20. “A plaintiff must make a ORDER - 17 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 18 of 33 1 showing as to each of these elements, although in [the Ninth Circuit] ‘if a plaintiff can 2 only show that there are ‘serious questions going to the merits’—a lesser showing than 3 likelihood of success on the merits—then a preliminary injunction may still issue if the 4 ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter 5 factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. 6 Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). “That is, ‘serious questions 7 going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can 8 support issuance of a preliminary injunction, so long as the plaintiff also shows that there 9 is a likelihood of irreparable injury and that the injunction is in the public interest.” All. 10 for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1135 (9th Cir. 2001). 11 B. Mr. Daleiden’s Request to Strike Doe Plaintiffs’ Motion 12 In his response, Mr. Daleiden asks the court to strike Doe Plaintiffs’ motion. (See 13 Resp. at 8 (citing Local Rules W.D. Wash. LCR 7(g)).) Mr. Daleiden’s objects that both 14 the law of the case doctrine and the rule of mandate preclude Doe Plaintiffs’ motion. 15 (Resp. at 7-12.) In addition, Mr. Daleiden argues, based on out-of-circuit authority, that 16 Doe Plaintiffs’ motion is untimely or improperly successive. The court disagrees on both 17 counts. 18 1. Neither the Law of the Case Doctrine Nor the Rule of Mandate Preclude Doe Plaintiffs’ Motion 19 In general, “‘[t]he law of the case doctrine requires a district court to follow the 20 appellate court’s resolution of an issue of law in all subsequent proceedings in the same 21 case.’” Al-Safin v. Circuit City Store, Inc., 394 F.3d 1254, 1258 (9th Cir. 2005) (quoting 22 ORDER - 18 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 19 of 33 1 United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th Cir. 2001)). 2 “However, ‘[t]he doctrine does not apply to issues not addressed by the appellate court.’” 3 Id. (quoting Lujan, 243 F.3d at 1186). Moreover, for preliminary injunctions, it is the 4 Ninth Circuit’s “general rule” that appellate decisions do not constitute the law of the 5 case. Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t 6 of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007). Although any decisions on pure issues of 7 law are binding, id., the general rule concerning preliminary injunctions recognizes that 8 “a preliminary injunction decision is just that: preliminary.” Ctr. for Biological 9 Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (citing Ranchers Cattlemen, 10 499 F.3d at 1114). The Ninth Circuit has explained that because a later, more fully 11 developed factual record may be materially different from the one initially before the 12 district court, the Ninth Circuit’s disposition of an appeal from a preliminary injunction 13 may provide little guidance later in the same case. See Sports Form, Inc. v. United Press 14 Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982); see also Melendres v. Arpaio, 695 F.3d 990, 15 1003 (9th Cir. 2012). Indeed, where a district court “erroneously” failed to abide by “the 16 general rule” that the Ninth Circuit’s decision on a preliminary injunction appeal was not 17 the law of the case, the Circuit admonished the lower court that it was “not bound by [the 18 Circuit’s] earlier conclusions.” Ranchers Cattlemen, 499 F.3d at 1114. 19 The Ninth Circuit’s conclusions of law in its most recent order include (1) that 20 Doe Plaintiffs 3, 4, and 5, who “took part in or were associated with advocacy for 21 reproductive rights,” have First Amendment protection against disclosure of their 22 personally identifying information found in documents subject to production under the ORDER - 19 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 20 of 33 1 PRA, and (2) that Doe Plaintiffs 7 and 8, who engaged in research activities involving 2 fetal tissue, may have the same protection. (See 3/25/20 9th Cir. Mem. at 4.) With 3 respect to Doe Plaintiffs 1, 2, and 6, however, the Ninth Circuit did not make a pure 4 ruling of law, but rather ruled that the evidence in the record before it and on which this 5 court relied in issuing its preliminary injunction was insufficient to show that Doe 6 Plaintiffs 1, 2, and 6 were engaged in or associated with activity—whether advocacy or 7 research—that is protected by the First Amendment. (Id.) Specifically, the Ninth Circuit 8 found that Doe Plaintiffs 1, 2, and 6’s declarations were too “thin and generalized” to 9 establish the necessary “particularized, personal link between the declarant and a claimed 10 protected activity.” (Id.) Simply put, the Ninth Circuit’s evidentiary ruling vacating the 11 court’s preliminary injunction with respect to Doe Plaintiffs 1, 2, and 6 is not law of the 12 case. See, e.g., Stormans, Inc. V. Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015) 13 (ruling that prior Ninth Circuit order vacating district court’s grant of a preliminary 14 injunction was not law of the case on later appeal because the issue did not involve one 15 “pure” law but rather a mixed question of fact and law). Thus, the doctrine does not bar 16 Doe Plaintiffs’ present motion asking the court to reissue a preliminary injunction for 17 Doe Plaintiffs 1, 2, and 6 based on a more developed factual record. 18 Likewise, the rule of mandate does not preclude Doe Plaintiffs’ motion. Although 19 the rule requires a district court to “act on the mandate of an appellate court, without 20 variance,” United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006), the 21 district court may still “‘decide anything not foreclosed by the mandate.’” Padgett v. City 22 of Monte Sereno, 722 F. App’x 608, 610-11 (9th Cir. 2018) (quoting Stacey v. Colvin, ORDER - 20 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 21 of 33 1 825 F.3d 563, 568 (9th Cir. 2016)). The Ninth Circuit’s May 13, 2020, mandate states 2 that “[t]he judgment of [the Ninth Circuit], entered March 25, 2020, takes effect this 3 date.” (Mandate (Dkt. # 199) at 1.) Thus, as of May 13, 2020, although the Ninth Circuit 4 affirmed this court’s preliminary injunction concerning Doe Plaintiffs 3-5, and 7-8, the 5 Ninth Circuit reversed and vacated the preliminary injunction concerning Doe Plaintiffs 6 1, 2, and 6 due to insufficient evidentiary grounding. (See 3/25/20 9th Cir. Mem. at 4.) 7 Thus, pursuant to the Ninth Circuit’s mandate and the rule of mandate, there presently is 8 no preliminary injunction in effect covering the personally identifying information of 9 Doe Plaintiffs 1, 2, and 6. Neither the Ninth Circuit’s mandate nor its March 25, 2020, 10 order, however, foreclose this court from accepting and considering additional evidence 11 from Doe Plaintiffs 1, 2, and 6, or from determining whether that evidence is sufficient to 12 reinstate the protection of a preliminary injunction for those Doe Plaintiffs. Indeed, it 13 would be surprising if the Ninth Circuit’s ruling had done so given that discovery is still 14 open and the Ninth Circuit has “repeatedly emphasized the preliminary nature of 15 preliminary injunction appeals.” See Ctr. for Biological Diversity, 706 F.3d at 1090. 16 Thus, the court concludes that neither the law of the case doctrine or the rule of mandate 17 precludes Doe Plaintiffs’ motion. 10 18 // 19 20 21 22 10 Mr. Daleiden also argues that the Ninth Circuit’s use of the terms “reversed” and “vacated” in its March 25, 2020, order somehow reinforces application of the law of the case doctrine here. (See Resp. at 10-12.) The Ninth Circuit, however, implicitly rejected this notion in Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015). In Stormans, the Ninth Circuit noted that it had “vacated the district court’s grant of a preliminary injunction” during the parties’ previous appeal. See id. The Court nevertheless rejected the defendants’ argument that the law of the case doctrine applied to its earlier ruling vacating the preliminary injunction. Id. ORDER - 21 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 22 of 33 1 2. Doe Plaintiffs’ Motion is Not Untimely or Improperly Successive 2 Mr. Daleiden also relies on out-of-circuit and inapposite authority to argue that 3 Doe Plaintiffs’ motion is untimely or improperly successive. (See Resp. at 8-10 (citing 4 Gill v. Monroe Cty. Dep’t of Soc. Servs., 873 F.2d 647, 648-49 (2d Cir. 1989); F.W. Kerr 5 Chem. Co. v. Crandall Assoc., Inc., 815 F2d 426, 429 (6th Cir. 1987); Favia v. Ind. Univ. 6 of Pa., 7 F.3d 332, 337-38 (3d Cir. 1993)).) As Mr. Daleiden concedes, the decisions he 7 cites all address whether an appeal of an adverse preliminary injunction ruling was timely 8 under Federal Rule of Appellate Procedure 4(a)(1) and therefore whether the circuit court 9 had jurisdiction to consider the appeal. (See Resp. at 9 (“The opinions in Gill, Kerr, and 10 Favia all deal with whether the circuit court has jurisdiction.”).) As discussed below, 11 these cases have little, if any, application to the circumstances before this court. 12 In general, Federal Rule of Appellate Procedure 4(a)(1) requires a party seeking to 13 appeal an adverse preliminary injunction ruling to file a notice of appeal within 30 days. 11 14 See Fed. R. App. P. 4(a)(1)(A). In Gill, the Second Circuit held that the plaintiffs could 15 not extend their Rule 4(a)(1) time to appeal the district court’s order denying their 16 preliminary injunction motion by filing three successive motions—all of which were 17 denied—seeking the same relief. 873 F.2d at 649. The Gill court recognized an 18 exception where “there are changes in fact, law, or circumstance since the previous 19 ruling,” but because the new evidence the plaintiffs relied upon in their third motion was 20 // 21 22 11 “Interlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions” are appealable under 28 U.S.C.A. § 1292(a)(1). ORDER - 22 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 23 of 33 1 available to them at the time they filed their first and second motions, the Gill court held 2 that the exception did not apply. Id. at 648-49. Accordingly, the Second Circuit 3 dismissed the appeal because the time constraints of Rule 4(a)(1) are jurisdictional. See 4 id at 649. Likewise, in Kerr, the plaintiffs also filed three preliminary injunction 5 motions. 815 F.2d at 426. Similar to Gill, the Sixth Circuit held that the plaintiffs’ 6 appeal from the district court’s third denial was untimely. Id. at 429. The Gill court held 7 that nothing had changed from the plaintiffs’ second motion and therefore the plaintiffs’ 8 time to appeal ran from the court’s second order denying a preliminary injunction. Id. 9 Because the plaintiffs’ appeal was untimely under Rule 4(a)(1), the Sixth Circuit 10 dismissed it. Id. Finally, Favia involved a motion by the defendant to modify a 11 preliminary injunction. 7 F.3d at 334. The defendant did not appeal the court’s order 12 issuing a preliminary injunction. Id. at 336. Instead, the defendant filed a motion to 13 modify the preliminary injunction several weeks later. See id. The Third Circuit held 14 that because there was a change in circumstance between when the court entered the 15 preliminary injunction and when the defendant moved to modify the preliminary 16 injunction, the defendants’ appeal of the district court’s denial of their motion to modify 17 the preliminary injunction was timely and the court had jurisdiction. Id. at 339-40. 18 Taken together, the cases Mr. Daleiden cites stand for the proposition that litigants 19 may not manipulate the use of motions practice to extend their time to appeal an 20 unfavorable preliminary injunction ruling, but the cases have little to do with the 21 circumstances before this court. None of the cases Mr. Daleiden cites involve multiple 22 appeals by the party aggrieved by a preliminary injunction or multiple orders by the ORDER - 23 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 24 of 33 1 circuit court providing both the parties and the court additional guidance as to the legal 2 issues and factual requirements for imposing such a preliminary injunction. Further, 3 although the cases Mr. Daleiden cites might have some bearing on the ability of Doe 4 Plaintiffs, as the moving parties, to appeal an adverse ruling on their present motion, the 5 cases would have no bearing on Mr. Daleiden’s ability to appeal because he is not the 6 moving party, who might be accused of manipulating motions practice to extend the 7 appeal deadline, but rather the responding party. 8 9 In any event, the Ninth Circuit’s March 25, 2020, order, which provided additional guidance both as to the legal issues before the court as well as the required factual basis 10 for issuing a preliminary injunction, provides the necessary changed circumstances 11 warranting Doe Plaintiffs’ present motion. (See 3/25/20 9th Cir. Mem. at 4.) Indeed, 12 Doe Plaintiffs offer additional evidence concerning Doe Plaintiffs 1, 2, and 6 specifically 13 in response to the Ninth Circuit’s March 25, 2020, order. (See Doe 1 Supp. Decl.; Doe 2 14 Supp. Decl.; Doe 6 Supp. Decl.) There is no question that the court could consider this 15 evidence at trial or when ultimately ruling on the merits in this case. See E. Bay 16 Sanctuary Covenant v. Trump, 950 F.3d 1242, 1262 (9th Cir. 2020) (“Our review of 17 district court orders denying or granting preliminary-injunction requests also does not 18 typically become law of the case; the record before a later panel may materially differ 19 from the record before the first panel, such that the first panel’s decision eventually 20 provides ‘little guidance as to the appropriate disposition on the merits.’”) (quoting 21 Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982)). 22 Accordingly, the court can see no logical reason why it could not consider this evidence ORDER - 24 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 25 of 33 1 now on Doe Plaintiffs’ motion to reinstate the preliminary injunction for Doe Plaintiffs 1, 2 2, and 6. Indeed, “[t]he primary justification for granting a preliminary injunction is to 3 preserve the court’s ability to render a meaningful decision after a trial on the merits.” 4 Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). As Doe 5 Plaintiffs’ argue “one cannot un-ring the bell.” (Reply at 3.) Here, where the protection 6 of Doe Plaintiffs’ identities and personally-identifying information is the very material 7 ultimately at stake in this litigation, consideration of reinstatement of the preliminary 8 injunction—so long as it is consistent with the Ninth Circuit’s guidance in its August 14, 9 2017, and March 25, 2020, orders—is a sound exercise of the court’s discretion to 10 preserve the status quo pending the closure of discovery and disposition concerning a 11 permanent injunction. For all the foregoing reasons, the court DENIES Mr. Daleiden’s 12 request to strike Doe Plaintiffs’ motion. 13 C. 14 Doe Plaintiffs 1, 2, and 6’s Likelihood of Success The court now turns to the merits of Doe Plaintiffs’ motion. Neither of the Ninth 15 Circuit’s orders question the court’s conclusions with respect to the last three Winter 16 factors—irreparable harm, the balance of the equities, and the public interest—which this 17 court found weighed in favor of issuing the preliminary injunction for all Doe Plaintiffs. 18 (See generally 8/14/17 9th Cir. Mem.; see also 3/25/20 9th Cir. Mem. at 3 (“Because we 19 agree with the district court that the balance of hardships tips precipitously in favor of . . . 20 Doe [P]laintiffs, we consider whether there is a serious question that goes to the merits.”); 21 see also PI Order at 19-21 (analyzing remaining Winter factors); 2d PI Order at 41-44 22 (analyzing remaining Winter factors.) Accordingly, the court will not revisit those factors ORDER - 25 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 26 of 33 1 here. Rather, the infirmities identified by the Ninth Circuit in its second order relate to 2 the sufficiency of the evidence personally connecting Doe Plaintiffs 1, 2, and 6 to 3 activities protected by the First Amendment, and thus, the court’s conclusion that Doe 4 Plaintiffs 1, 2 and 6 were likely to succeed on the merits or their claim or at least that they 5 had raised serious questions going to the merits. (See 3/25/20 9th Cir. Mem. at 4.) 6 Specifically, the Ninth Circuit criticized this court for relying “solely on the exceedingly 7 thin and generalized declarations of these Doe [P]laintiffs, which failed to allege a 8 particularized, personal link between the declarant and a claimed protected activity.” 9 (Id.) In their present motion, Doe Plaintiffs attempt to correct this factual deficiency by 10 submitting supplemental declarations from Doe Plaintiffs 1, 2, and 6, in which those Doe 11 Plaintiffs attempt to provide the “particularized, personal link” to a First Amendment 12 “protected activity” that the Ninth Circuit previously ruled was missing. (See generally 13 Mot.) Mr. Daleiden argues that Doe Plaintiffs 1, 2, and 6’s supplemental declarations 14 remain deficient and insufficiently connect these Doe Plaintiffs to either “research 15 activities” or “advocacy for reproductive rights.” (See Resp. at 12-13.) The court will 16 consider the supplemental declarations of each Doe Plaintiff in turn. 17 1. 18 In his supplemental declaration, John Doe 1 clarifies that he is pediatric John Doe 1 19 pathologist working for SCH Diagnostic Lab. (Doe 1 Supp. Decl. ¶ 5.) As a part of his 20 work, he performs autopsies on fetuses that die in utero as well as fetuses from 21 pregnancies terminated due to fetal malformation. (Id. ¶ 6.) In his supplemental 22 declaration, he testifies for the first time concerning the “significant research ORDER - 26 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 27 of 33 1 applications” of his work. (Id. ¶ 7.) In his work, he attempts to make a connection 2 between the fetus’s in-utero studies through which the patient received a diagnosis of a 3 fetal abnormality and the fetus’s pathology results. (Id.) Beyond the benefits to the 4 individual patient, “this analysis often then can be used longitudinally to inform the 5 diagnosis of that particular malformation in other patients with similar conditions.” (Id.) 6 In addition, the data he collects “is utilized in many clinical studies” and “is integral to 7 the research being done by and through the [UWBDRL].” (Id. ¶¶ 8-9.) He also clarifies 8 that in his role at SCH Diagnostic Lab, he coordinates the distribution of fetal tissue to 9 the UWBDRL after an autopsy is complete assuming that patient has so consented. (Id. 10 ¶ 10.) Indeed, if the UWBDRL needs and requests particular fetal tissue, John Doe 1 11 uses his profession judgment in examining the specimen and obtaining the specific tissue 12 that the UWBDRL needs. (Id. ¶ 14.) 13 Mr. Daleiden tries to minimize these additions to John Doe 1’s declarations by 14 arguing that John Doe 1 is merely a part of the “supply chain” procuring fetal tissue for 15 the ultimate research being done by the UWBDRL. (See Resp. at 13.) Although his 16 initial declaration may have left this impression (see generally Doe 1 Decl.), John Doe 17 1’s supplemental declaration clarifies that his work on fetal autopsies has significant 18 “research applications,” including its use to inform fetal abnormality diagnoses, as well 19 as its use in many clinical studies. (See Doe 1 Supp. Decl. ¶¶ 6-8.) In addition, John Doe 20 1 clarifies that his work collecting fetal tissue for UWBDRL requires the use of his 21 professional judgment in obtaining the correct fetal tissue samples required for 22 UWBDRL’s research, and thus, his work is an integral part of the research itself. (See id. ORDER - 27 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 28 of 33 1 ¶¶ 9-10, 14.) Based on John Doe 1’s supplemental declaration, the court concludes that 2 he has established the “particularized, personal link” between himself and the research 3 activities at issue in this suit that go to the heart of Doe Plaintiffs’ claims. The court, 4 therefore, concludes that John Doe 1 has rectified the evidentiary deficiency identified in 5 the Ninth Circuit’s March 25, 2020, order and, on the basis of John Doe 1’s supplemental 6 declaration, the court reissues the preliminary injunction as to John Doe 1. 7 2. 8 In her supplemental declaration, Jane Doe 2 clarifies that at the time the lawsuit 9 Jane Doe 2 was filed and until recently she was a research scientist at the UWBDRL where she 10 facilitated scholarly research using fetal tissue. (Doe 2 Supp. Decl. ¶¶ 1, 5.) As a part of 11 her work at UWBDRL, she worked with the UWBDRL’s ten participating clinics and 12 hospitals to counsel patients and obtain informed consent on the option of fetal tissue 13 donation for the UWBDRL’s research. (Id. ¶¶ 6-8.) Further, in the UWBDRL lab, she 14 was “responsible for isolating the specific organs and/or tissue” required for particular 15 research. (Id. ¶ 9.) She also monitored the clinical sites to ensure that those sites 16 complied with certain ethical standards related to research on human subjects and to 17 ensure that the clinical staff was trained in the proper handling and processing of fetal 18 tissue for transport to the UWBDRL. (Id. ¶ 11.) Finally, in her role at the UWBDRL, 19 she also reviewed researchers’ abstracts and application materials as part of the process 20 whereby researchers received fetal tissue for their research projects or studies. (Id. 21 ¶¶ 13-14.) 22 ORDER - 28 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 29 of 33 1 Mr. Daleiden argues that Jane Doe 2’s “role remains simply being part of the [fetal 2 tissue] supply chain” (Resp. at 13), but to do so he ignores the foregoing, material 3 evidentiary additions to her supplemental declaration (see Doe 2 Supp. Decl. ¶¶ 5, 8-9, 4 11, 13-14.) As her supplemental declaration demonstrates, Jane Doe 2 was not only a 5 research scientist at the UWBDRL who isolated fetal organs and/or tissue for particular 6 research projects, monitored clinical sites for compliance with various UWBDRL 7 research standards, and reviewed other researchers abstracts and application materials (id. 8 ¶¶ 9, 11, 13-14), but she was engaged in advocacy as well when she counseled patients 9 and obtained informed consent about fetal tissue donation after an abortion (see id. ¶ 8). 10 Based on Jane Doe 2’s supplemental declaration, the court concludes that she has 11 established the “particularized, personal link” between herself and the research and 12 advocacy activities at issue in this suit that go to the heart of Doe Plaintiffs’ claims. The 13 court, therefore, concludes that Jane Doe 2 has rectified the evidentiary deficiency 14 identified in the Ninth Circuit’s March 25, 2020, order and, on the basis of Jane Doe 2’s 15 supplemental declaration, reissues the preliminary injunction as to Jane Doe 2. 16 3. 17 In her supplemental declaration, Jane Doe 6 attests that she is a genetic counselor Jane Doe 6 18 at Evergreen with a Bachelor’s degree microbiology and a Master’s degree in genetic 19 counseling. (Doe 6 Supp. Decl. ¶ 3.) She adds that she works with patients who have 20 high-risk pregnancies with a family history of a genetic condition or other test results 21 indicating a birth defect or high risk of a genetic condition. (Id. ¶ 4.) She counsels these 22 patients on all pregnancy options, including abortion. (Id.) If a patient wants to ORDER - 29 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 30 of 33 1 terminate a pregnancy but cannot do so at Evergreen, she refers the patient to other 2 providers including Cedar River. (Id.) She also counsels patients on the option of fetal 3 tissue donation, including to the UWBDRL for birth defect research. (Id. ¶¶ 4-5.) Her 4 counseling of patients includes “how fetal tissue donation may benefit the patient directly 5 for future pregnancies or more broadly, others facing similar circumstances.” (Id. ¶ 5.) 6 She is authorized to obtain informed consent from patients for pregnancy termination and 7 for fetal tissue donation. (Id. ¶ 6.) She also communicates with UWBDRL to coordinate 8 the collection and transportation of fetal tissue to UWBDRL for processing. (Id.) 9 Mr. Daleiden argues that, despite Jane Doe 6’s additional testimony, she remains 10 nothing more than a cog in the fetal tissue “supply chain.” (See Resp. at 13.) But Mr. 11 Daleiden’s willful blindness to her additional testimony does not render her additional 12 testimony a nullity. In her role as a genetic counselor, Jane Doe 6 was “engaged in 13 activity protected by the First Amendment, as [she] . . . took part in or [was] associated 14 with advocacy for reproductive rights.” (See 3/25/20 9th Cir. Mem. at 4.) Specifically, 15 she counsels her patients on the option of obtaining an abortion and the potential benefits 16 of fetal tissue donation and research. (See Doe 6 Supp. Decl. ¶¶ 4-6.) Based on Jane Doe 17 6’s supplemental declaration, the court concludes that she has established the 18 “particularized, personal link” between herself and the advocacy activities at issue in this 19 suit that go to the heart of Doe Plaintiffs’ claims. The court, therefore, concludes that 20 Jane Doe 6 has rectified the evidentiary deficiency identified in the Ninth Circuit’s March 21 25, 2020, order and, on the basis of Jane Doe 6’s supplemental declaration, reissues the 22 preliminary injunction as to Jane Doe 6. ORDER - 30 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 31 of 33 1 2 D. Class Certification and Mr. Daleiden’s Requests for Affirmative Relief In their motion, Doe Plaintiffs include a section in which they discuss the court’s 3 order granting class certification, but do not seek any change to that order or and other 4 affirmative relief concerning the class certification order. (See Mot. at 7-10.) In his 5 response, Mr. Daleiden apparently seeks decertification of the class and an order 6 requiring disclosure of Doe Plaintiffs’ identities and compelling the production of 7 documents related to Doe Plaintiffs 1, 2, and 6. (See Resp. at 14-17.) The court declines 8 to consider these issues as they are not properly before the court at this time. See Duong 9 c. Ground Enters., Inc., NO. 2:19-CV-01333_DMG-MAA, 2020 WL 2041939, at *12 10 (C.D. Cal. Feb. 28, 2020) (“Courts in this and other districts have concluded that a 11 request for affirmative relief is not proper when raised for the first time in an 12 opposition.”) (collecting cases); see also Sumner Plains 84, LLC. v. Anchor Ins. & Sur., 13 Inc., No. C18-5260BHS, 2018 WL 4630104, at *2 (W.D. Wash. Sept. 27, 2018) (“[A] 14 cross-motion is normally required for affirmative relief in opposition.”). Further, the 15 discovery Mr. Daleiden seeks would be in apparent violation of the court’s reissued 16 preliminary injunction for Doe Plaintiffs 1, 2, and 6. See supra § III.C. Finally, there is 17 nothing on the record indicating that Mr. Daleiden has conferred in good faith with Doe 18 Plaintiffs concerning the discovery issue he raises as is required by the court’s local rules 19 before he may move to compel discovery. See Local Rules W.D. Wash. LCR 37(a)(1) 20 (“Any motion for an order compelling disclosure or discovery must include a certification 21 . . . that the movant has in good faith conferred or attempted to confer with the person or 22 party failing to make disclosure or discovery in an effort to resolve the dispute without ORDER - 31 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 32 of 33 1 court action.”). If, however, Mr. Daleiden would like to raise some or all of these issues 2 in a procedurally proper motion, he may do so. The court will not consider them 3 otherwise. 4 E. UW’s Response Seeking Clarification 5 In its response to Doe Plaintiffs’ motion, UW took “no substantive position” but 6 asked the court for clarification concerning the Ninth Circuit’s order and its obligations 7 concerning document production. (See generally UW Resp.) Specifically, UW stated 8 that because Doe Plaintiffs are proceeding pseudonymously, if Doe Plaintiffs’ motion 9 was denied, without more information, UW would be unable to determine which names 10 should be unredacted and produced to comply with the Ninth Circuit’s order. (UW Resp. 11 at 3.) UW also stated that it was uncertain concerning the status of class certification 12 following the Ninth Circuit’s March 25, 2020, order. (See id.) Because the court has 13 granted Doe Plaintiffs’ motion and reissued the preliminary injunction based on Doe 14 Plaintiffs 1, 2, and 6’s supplemental declarations and has declined to consider any 15 modifications to the class certification order in the absence of a motion seeking such 16 relief, UW’s concerns have not materialized and the court need not address them. 17 IV. CONCLUSION 18 Based on the foregoing analysis and Doe Plaintiffs 1, 2, and 6’s supplemental 19 declarations (Dkt. ## 207-09), the court GRANTS Doe Plaintiffs’ motion (Dkt. # 206) 20 and reinstates the preliminary injunction for Doe Plaintiffs 1, 2, and 6 that it initially 21 // 22 // ORDER - 32 Case 2:16-cv-01212-JLR Document 213 Filed 07/20/20 Page 33 of 33 1 imposed on November 16, 2016, reissued on November 30, 2017, and clarified on 2 February 26, 2018 (see Dkt. ## 88, 130, 155). 3 Dated this 20th day of July, 2020. 4 5 A 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 33
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