Two defendants in Planned Parenthood’s civil lawsuit over videos seek dismissal

Two anti-abortion activists accused of assisting in the release of videos allegedly showing Planned Parenthood staff discussing the sale of aborted fetal tissue argued in a summary judgment motion Wednesday they should be dismissed from the lawsuit because they were not a part of the conspiracy to secretly record the conversations.

Albin Rhomberg and Troy Newman disputed their roles in the undercover investigation, saying they did not have "knowledge of, much less participated in or supported" any illegal conduct by two other employees.

Even if they did, the two Center for Medical Progress executives denied that Planned Parenthood's claims for damages "flow directly" from their allegedly illicit activities and are unrecoverable.

"Here, while Rhomberg and Newman may have been aware of and agreed to the overall goal of CMP -- investigating and reporting about illegal and unethical activities within the fetal tissue procurement and abortion industries -- they did not agree to, and in fact were unaware of, any predicate acts of racketeering," wrote defense attorney Edward L. White of the American Center for Law & Justice.

Planned Parenthood and its affiliates accused Rhomberg and Newman of assisting anti-abortion activists David Daleiden and Sandra Merritt to obtain false documentation to gain entry into a meeting where they covertly recorded the videos at the center of the legal battle spanning multiple states in various courts.

Rhomberg is the chief financial officer for the Center for Medical Progress, while Newman is a co-founder and board member.

Planned Parenthood sued the Center for Medical Progress and its employees on racketeering, conspiracy and invasion of privacy claims. Planned Parenthood Federation of America Inc. v. Center for Medical Progress, 16-CV00236 (N.D. Cal., filed Jan. 2016).

Plaintiffs claimed the videos were fraudulent and cost them millions of dollars in additional security, among other damages. Planned Parenthood claimed the footage was edited to suggest the organization illegally sells fetal tissue.

The defendant group has said the videos are accurate and a federal judge in Louisiana found them credible in a case involving a move to defund the group in Texas.

White rejected accusations that any of Planned Parenthood's increased costs are actually damages directly caused by Rhomberg and Newman. He said plaintiffs "voluntarily made" the expenditures in response to public reaction to the videos.

The defendants are not liable for damages of the alleged misconduct of helping in the production of false identification documents, because "association is not enough" under conspiracy claims, White argued.

White also disputed plaintiffs' characterization that there was a nine-fold increase in incidents of harassment following the release of the videos. He wrote the figure is actually much lower and most were "unrelated to disapproval of abortion, much less incited by any defendant."

U.S. District Judge William H. Orrick, who is overseeing the case, refused to dismiss Rhomberg from the lawsuit at a January hearing but indicated skepticism of the plaintiffs' prospects moving forward.

"Until discovery is done, I don't know precisely what the defendants did so that I can analyze whether there is in fact a direct relationship [with Deleiden and Merritt] or not," he said.

Orrick wrote in a 2016 order that Planned Parenthood may not be able to recover damages caused by "intervening actions of third parties," such as the states.