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Case 3:15-cv-03522-WHO Document 197-3 Filed 11/03/15 Page 1 of 5

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LINDA E. SHOSTAK (CA SBN 64599)


LShostak@mofo.com
DEREK F. FORAN (CA SBN 224569)
DForan@mofo.com
NICHOLAS S. NAPOLITAN (CA SBN 251762)
NNapolitan@mofo.com
CHRISTOPHER L. ROBINSON (CA SBN 260778)
ChristopherRobinson@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Plaintiff
NATIONAL ABORTION FEDERATION (NAF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NATIONAL ABORTION FEDERATION (NAF),


Plaintiff,

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v.
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES LLC,
DAVID DALEIDEN (aka ROBERT SARKIS),
and TROY NEWMAN,

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Case No. 3:15-cv-3522


Judge: William H. Orrick, III
OPPOSITION TO MOTION TO
QUASH THE SUBPOENA OF
CHARLES C. JOHNSON
Date Action Filed:
Trial Date:

July 31, 2015

Defendants.
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REDACTED VERSION OF DOCUMENT SOUGHT


TO BE SEALED

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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH


CASE NO. 3:15-cv-3522-WHO

Case 3:15-cv-03522-WHO Document 197-3 Filed 11/03/15 Page 2 of 5

Charles C. Johnson, a close friend of David Daleidens, is actively disclosing material

covered by this Courts TRO, and he claims that he has all of the videos covered by this Courts

Orders. (Dkt. No. 171-3 at 2.) The Court therefore permitted NAF to serve a deposition

subpoena on Johnson. (Dkt. No. 185 at 4.) Accordingly, NAF served a deposition subpoena

duces tecum on Johnson this Sunday. (Dkt. No. 194.) The deposition is scheduled for this

Friday, November 6 in Fresno. All defendants have consented to the deposition proceeding on

Friday as scheduled. (Foran Decl., Ex. A.)

On Monday, November 2, however, counsel for Johnson filed a motion to quash the

subpoena. (Dkt. No. 193.) The hearing on that motion is not set until December 9, over a month

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after Johnson is scheduled to appear for deposition pursuant to the subpoena served on him. By

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separate email, counsel for Johnson indicated that Johnson would not appear for the noticed

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deposition because of the pending motion to quash. (Foran Decl., Ex. B.) Further, counsel for

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Johnson refuses to discuss any date for the deposition until after the hearing on the motion to

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quash. (Id.)

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Johnsons motion to quash does not operate to suspend his legal duty to attend the

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deposition as scheduled. It is black letter law that [m]erely filing a motion for protective order

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does not stop the deposition or excuse the deponent from attending. Tashima & Wagstaffe, Cal.

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Prac. Guide Fed. Civ. Pro. Before Trial, 11:1444 (The Rutter Group 2015). The Ninth Circuit

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made this point crystal clear in Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269

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(9th Cir. 1964), cert. denied, 380 U.S. 956 (1965), when it held that it is for the court, not the

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deponent or his counsel, to relieve him of the duty to appear for a deposition. In Dolman, a

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party whose deposition was duly noticed contended that they need not appear at the deposition if

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a motion to quash is on file, even if the court has yet to act on it. Id. at 269. Their position, the

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Ninth Circuit held, was without merit: Any such rule would be an intolerable clog upon the

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discovery process. Id. Thus, absent a court order that postpones or dispenses with his duty to

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appear [at a scheduled deposition], that duty remains. Id.

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There are numerous other cases to the same effect. See e.g., Scott v. Palmer, No. 0901329, 2014 WL 6685813, at *3 (E.D. Cal. Nov. 26, 2014) ([T]he filing of a motion seeking
NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905

Case 3:15-cv-03522-WHO Document 197-3 Filed 11/03/15 Page 3 of 5

relief from a deposition does not relieve the deponent from being deposed. (original emphasis));

Huene v. U.S. Dept of Treasury, I.R.S., No. 11 -2110, 2013 WL 417747, at *3-4 (E.D. Cal. Jan.

31, 2013) (unless a party or witness files a motion for a protective order and seeks and obtains a

stay prior to the deposition, a party or witness has no basis to refuse to attend a properly noticed

deposition (original emphasis)); Charm Floral v. Wald Imports, Ltd., No. 10-1550, 2012 WL

424581, at *2 (W.D. Wash. Feb. 9, 2012) (same); In re FACTA Litig., No. 08-1980, 2010 WL

4942645, at *3 (C.D. Cal. July 29, 2010) (same).

Accordingly, if Johnson fails to appear as indicated, NAF is entitled to an order holding

him in contempt, as well as attorneys fees and costs necessitated by his failure to appear. See,

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e.g., King v. Fid. Nat. Bank of Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983) (awarding

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sanctions where proposed deponent refused to attend deposition while motion to quash subpoena

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was pending); Stephen L. LaFrance Holdings, Inc. v. Sorensen, 278 F.R.D. 429 (E.D. Ark. 2011)

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(awarding sanctions after finding that the burden is on the movant to obtain a ruling on a motion

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to quash before cancelling a deposition, and given the timing of the filing of a motion to quash on

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the eve of the deposition, the plaintiff could hardly have expected in good faith to receive a court

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order excusing her attendance).

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Johnsons claim that he was not provided with reasonable time to respond to NAFs

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request for documents is meritless. Rule 45 of the Federal Rule of Civil Procedure provides that

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Johnson be given a reasonable time to comply. What constitutes reasonable notice depends on

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the circumstances of each case, and courts routinely find that this requirement is met in cases that

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involve less than the maximum 30-day time limit set forth in Rule 45. See, e.g., Jones v. United

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States, 720 F. Supp. 355, 366 (S.D.N.Y.1989) (holding that eight days notice was reasonable);

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see also In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005) ([T]en business

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days notice [of a deposition] would seem to be reasonable); Natural Organics v. Proteins Plus,

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Inc., 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989) (noting that one-day notice was reasonable

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because the parties were on an expedited discovery schedule, the need for a deposition arose

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suddenly, and the deposition was conducted over the telephone).

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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
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Case 3:15-cv-03522-WHO Document 197-3 Filed 11/03/15 Page 4 of 5

Time is of the essence here. Last week, Daleiden testified

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(Dkt. No. 187-3 at 22:8-20; 23:2-7; 25:13-16; 65:24-66:6.) Daleiden

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(Id. at 60:11-19; 61:1-14.) Indeed, in the same week Johnson began

disclosing materials covered by the Courts TRO, he posted the following photo of himself and

Daleiden on social media:

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Further, Daleiden testified

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(Id. at 66:10-14; 67:10-21.) There is no earthly reason why Johnson should take longer

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than a week to print and bring with him to deposition a handful of emails and texts called for by

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the subpoena.

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The Court should not tolerate Johnsons refusal to appear for a deposition that all parties

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to this proceeding concede should take place this Friday, especially in light of his counsels point

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blank refusal to discuss any other date short of his improper motion to quash. The length of time

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necessitated by this delay could result in further disclosures of TRO materials and further threaten

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the integrity of these proceedings, as well as the safety and security of NAF members.

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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905

Case 3:15-cv-03522-WHO Document 197-3 Filed 11/03/15 Page 5 of 5

For these reasons, NAF asks the Court to issue an order clarifying that Johnsons motion

to quash does not operate to suspend his legal obligation to comply with the subpoena served on

him.

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Dated: November 3, 2015

LINDA E. SHOSTAK
DEREK F. FORAN
NICHOLAS S. NAPOLITAN
CHRISTOPHER L. ROBINSON
MORRISON & FOERSTER LLP

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By:

/s/ Derek F. Foran


Derek F. Foran

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Attorneys for Plaintiff


NATIONAL ABORTION FEDERATION

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NAFS MEMORANDUM RE IN OPP. TO JOHNSONS MOT. TO QUASH
CASE NO. 3:15-cv-3522-WHO
sf-3592905