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Does v. University of Washington

United States District Court, W.D. Washington, Seattle

April 23, 2018

JANE DOES 1-10, et al., Plaintiffs,
v.
UNIVERSITY OF WASHINGTON, et al., Defendants.

          ORDER GRANTING MOTION FOR CLASS CERTIFICATION

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiffs Jane Does 1-10 and John Does 1-10's (collectively, “Doe Plaintiffs”) motion for class certification. (MCC (Dkt. # 16).) Defendant David Daleiden opposes the motion. (Resp. (Dkt. # 63).) The court has considered the motion, Mr. Daleiden's response, all other submissions filed in support of and opposition to the motion (see, e.g., Reply (Dkt. # 66); Supp. Reply (Dkt. # 144); Supp. Resp. (Dkt. # 149); Doe Supp. Br. (Dkt. # 164); Def. Supp. Br. (Dkt. # 166)), and the applicable law. Being fully advised, [1] the court GRANTS the motion as described below.

         II. BACKGROUND

         A. The PRA Requests

         On February 9, 2016, Mr. Daleiden sent a written request to Defendant University of Washington (“UW”) under Washington State's Public Records Act (“PRA”), RCW ch. 42.56, to “inspect or obtain copies of all documents that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the [UW] Birth Defects Research Laboratory from 2010 to present.” (Power Decl. (Dkt. # 5) ¶ 4, Ex. C (bolding in original).) On February 10, 2016, Defendant Zachary Freeman issued a similar PRA request to UW.[2] (Id. ¶ 6, Ex. E.) Among other documents, these PRA requests sought communications between UW or its Birth Defects Research Laboratory (“the Lab”), on the one hand, and Cedar River Clinics (“Cedar River”), Planned Parenthood of Greater Washington and North Idaho, or certain individuals or employees of Cedar River and Planned Parenthood of Greater Washington and North Idaho, on the other hand. (Id. ¶ 6, Ex. E at 1; see also id. ¶ 4, Ex. C at 1-2.) Mr. Daleiden's PRA request specifically lists the names of eight such individuals. (Id. ¶ 4, Ex. C at 1-2.)

         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 request without redaction at 12:00 p.m. on August 5, 2016.[3] (Does 1, 3-4, 7-8 Decls. (Dkt. ## 6, 8-9, 12-13) ¶ 3, Ex. A; Doe 5 Decl. (Dkt. # 10) ¶ 3; Doe 6 Decl. (Dkt. # 11) ¶ 5, Ex. A.) On July 26, 2016, UW issued a similar notice to Doe Plaintiffs regarding Mr. Freeman's request and indicated that, absent a court order, UW would provide responsive documents without redaction on August 10, 2016. (Does 1, 3-4 Decls. ¶ 4, Ex. B.)[4]

         B. Doe Plaintiffs File Suit

         On August 3, 2016, Doe Plaintiffs filed a complaint on behalf of a putative class seeking to enjoin UW from issuing unredacted documents in response to the PRA requests. (Compl. (Dkt. # 1).)[5] Doe Plaintiffs object to disclosure of the requested documents in unredacted form because the documents include personally identifying information such as direct work phone numbers, work emails, personal cell phone numbers, and other information. (See TAC (Dkt. # 77) at 2 (“Doe Plaintiffs . . . seek to have their personal identifying information withheld to protect their safety and privacy.”); see also, e.g., Doe 5 Decl. ¶¶ 4-5 (“Any email contacts I had with [the Lab] would have highly personal information such as my name, email address, and phone number. . . . My name, email address, and phone number are information that I try to keep private when related to where I work.”).) On the same day that they filed suit, Doe Plaintiffs filed a motion seeking both a temporary restraining order (“TRO”) and a preliminary injunction against disclosure of the requested documents.[6] (See TRO/PI Mot. (Dkt. # 2).)

         In addition, Doe Plaintiffs filed the present motion for class certification. (See MCC (Dkt. # 16).) In their original motion, Doe Plaintiffs ask the court to certify a class consisting of “[a]ll individuals whose names and/or personal identifying information (work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by UW that are related to fetal tissue research or donations.” (Id. at 2.)

         C. Initial TRO and Preliminary Injunction

         On August 3, 2016, the court granted Doe Plaintiffs' motion for a TRO but set the TRO to expire on August 17, 2016, at 11:59 p.m. (TRO (Dkt. # 27) at 7.) The court // restrained UW “from releasing, altering, or disposing of the requested documents or disclosing the personal identifying information of Plaintiffs pending further order from this court.” (Id. at 7.) On August 17, 2016, the court extended the TRO “until such time as the court resolves [Doe] Plaintiffs' pending motion for a preliminary injunction.” (8/17/16 Order (Dkt. # 54) at 2.)

         On November 11, 2016, the court granted Doe Plaintiffs' motion for a preliminary injunction.[7] (PI (Dkt. # 88).) The court concluded that Doe Plaintiffs were likely to succeed on the merits of their claim that disclosure of their personally identifying information would render them and those similarly situated uniquely vulnerable to harassment, shaming, stalking, or worse, and in this context, would violate their First Amendment rights to freedom of expression and association. (Id. at 18-19.) Thus, the court also concluded that Doe Plaintiffs were “likely to succeed on the merits of their claim that their personally identifying information is exempt from disclosure under the PRA.” (Id. at 19.) After finding that the remaining factors-irreparable injury, the public interest, and the balance of equities-also favored preliminary injunctive relief, the court granted Doe Plaintiffs' motion but narrowed the scope of the preliminary injunctive relief as compared to the relief granted in the TRO. (See Id. at 19-22, 25.)

         In the preliminary injunction, the court did not prohibit the release of the documents at issue but rather enjoined UW from releasing the requested documents without first redacting all personally identifying information or information for Doe Plaintiffs from which a person's identity could be derived with reasonable certainty. (Id. at 19-21, 25.) Specifically, the court held that UW must redact all personally identifying information, including but not limited to (a) information that identifies or provides the location of an individual, (b) information that would allow an individual to be identified or located, (c) information that would allow an individual to be contacted, (d) names of individuals, (e) phone numbers, (f) facsimile numbers, (g) email and mailing addresses, (h) social security or tax identification numbers, and (i) job titles. (Id. at 25-26.)

         D. Mr. Daleiden's First Appeal

         On December 15, 2016, Mr. Daleiden appealed the district court's grant of a preliminary injunction. (See Not. of App. (Dkt. # 98).) On January 4, 2017, this court stayed proceedings at the district court level, including Doe Plaintiffs' motion for class certification, pending the resolution of Mr. Daleiden's appeal.[8] (1/4/17 Min. Entry.) On August 14, 2017, the Ninth Circuit reversed and remanded the court's preliminary injunction order but nevertheless left the preliminary injunction in place for 120 days “to // allow the district court to enter the necessary findings of fact and conclusions of law supporting injunctive relief.” (USCA Order at 4.)

         In its August 14, 2017, order, the Ninth Circuit stated that “[t]o prevail on the First Amendment claim, . . . Doe Plaintiffs must show that particular individuals or groups of individuals were engaged in activity protected by the First Amendment and ‘show “a reasonable probability that the compelled disclosure of personal information will subject”' those individuals or groups of individuals ‘to threats, harassment, or reprisals' that would have a chilling effect on that activity.” (USCA Order at 3 (citing John Doe No. 1 v. Reed, U.S. 186, 200 (2010) and quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976) (brackets omitted) (footnote omitted).) The Ninth Circuit agreed “that there may be a basis for redaction where disclosure would likely result in threats, harassment, and violence, ” but determined that “the [district] court's order did not address how the Doe Plaintiffs have made the necessary clear showing with specificity as to the different individuals or groups of individuals who could be identified in the public records.” (Id.) The Ninth Circuit also determined that this court “made no finding that specific individuals or groups of individuals were engaged in activity protected by the First Amendment and what that activity was.” (Id. at 3-4.) Accordingly, the court remanded the proceeding “to address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups.” (Id. at 4.)

         The Ninth Circuit also referenced the pending motion for class certification and noted that this court “may choose to rule on that motion before revisiting the preliminary injunction if creating sub-classes would be useful and appropriate.” (Id. at 3, n.1.) The Ninth Circuit stated that “[c]onsiderations of commonality under Federal Rule of Civil Procedure 23 may bear some similarity to those related to particular individuals' entitlement to a preliminary injunction.” (Id.) The Ninth Circuit counseled, however, that “the timing of these decisions” was within the district court's discretion and “that a class-certification ruling [wa]s not a predicate to reissuing the preliminary injunction.” (Id.)

         E. Reissuing the Preliminary Injunction

         Following the Ninth Circuit's remand, the court issued an order directing the parties to submit supplemental briefing and other materials responding to the Ninth Circuit's guidance on Doe Plaintiffs' motion for a preliminary injunction. (See generally 8/22/17 Order (Dkt. # 114).) In addition, the court noted the Ninth Circuit's guidance concerning Doe Plaintiffs' motion for class certification, but left to Doe Plaintiffs “decisions concerning the re-noting, timing, and substance of their motion for class certification.” (Id. at 4, n.3.)

         After receiving the parties' supplemental materials on Doe Plaintiffs' motion for a preliminary injunction, [9] and hearing the argument of counsel, [10] the court reissued the preliminary injunction on November 30, 2017.[11] (2d PI (Dkt. # 130).) In their opening supplemental preliminary injunction brief, Doe Plaintiffs identified three groups for purposes of analyzing their engagement in First Amendment protected activity: (1) “[a]dvocates, [p]ractitioners, and [s]taff . . . who advocate through speech or conduct, for organizations and/or entities that provide abortions and/or make available fetal tissue for medical research, including individuals who in fact participate in the procurement of fetal tissue for medical research purposes and/or arrange for the delivery of fetal tissue to the Lab, and staff associated with the same”; (2) “[l]ab staff, ” which includes both current and former employees of the Lab, “who facilitate[] the collection and/or dissemination of fetal tissue for medical research purposes, and staff associated with the same”; and (3) “[r]esearchers and [s]taff . . . whose efforts contribute to medical research that uses fetal tissue obtained from the Lab, and staff associated with the same.” (Doe Supp. PI Br. at 3.) In addition, Doe Plaintiffs also implicitly identified another subgroup within each of the foregoing groups, consisting of the administrative or other staff members of each of the organizations engaged in advocacy or scientific research at issue here. (See Id. at 8.) Doe Plaintiffs also stated that they “anticipate[d] renewing their motion for class certification after the [c]ourt rules on the validity of the preliminary injunction, ” and they “intend[ed] to update their delineation of the class in line with the [sub]groups” they had now identified. (Id. at 3, n.2.)

         In its November 30, 2017, order reissuing the preliminary injunction, the court largely adopted Doe Plaintiffs' proposed three sub-groups for purposes of analyzing the First Amendment issues. (See 2d PI at 12-24.) The court agreed that those individuals in group one-employees of organizations that advocate for continued access to abortion and women's reproductive rights and/or the continued ability to conduct fetal tissue research-were likely to succeed on their claim that they engaged in First Amendment-protected activity. (See id. at 15-17.) The court also agreed that plaintiffs in groups one, two, and three were likely to succeed on their claim that they engaged in lawful activities critical to the conduct of fetal tissue research, and that the First Amendment also protects such research activity. (See id. at 17-20.) Finally, the court agreed that staff members in the three groups who worked for organizations engaged in either fetal tissue research and/or advocacy for women's reproductive health services were likely to succeed on their claim that they are entitled to the same First Amendment protections as the organizations that employ them because staff members are inevitably associated with the work of those organizations. (See Id. at 20-24.)

         In addition to concluding that Doe Plaintiffs in all of the identified subcategories were likely to succeed on their claim that they were entitled to First Amendment protection of their personally identifying information, the court also concluded that Doe Plaintiffs were likely to succeed on their claim that they have a constitutionally protected expectation of privacy in their personally identifying information based on article 1, section 7 of the Washington State Constitution. (Id. at 35-41.) Specifically, the court concluded that Doe Plaintiffs were likely to succeed on the merits of their claim that this right to privacy requires UW to redact their personally identifying information from the documents Mr. Daleiden requested under the PRA. (Id. at 40-41.) After concluding that Doe Plaintiffs were likely to succeed on the merits of both their First Amendment and privacy claims, the court also found that Doe Plaintiffs had met their burden with respect to the other preliminary injunction factors and reissued the same preliminary injunction consistent with scope of its prior order. (Id. at 41-44.)

         F. Motion for Class Certification

         On December 14, 2017, Doe Plaintiffs filed (1) a notice renoting their motion for class certification, and (2) a motion seeking leave to file a supplemental reply memorandum in support thereof. (Not. (Dkt. # 133); MFL (Dkt. # 134).) Defendants did not file a response to Doe Plaintiffs' motion (see Dkt.), and on December 27, 2017, the court granted the motion (12/27/17 Order (Dkt. # 143)).[12] On December 28, 2017, Doe Plaintiffs filed their supplemental reply memorandum in support of their motion for class certification. (See Supp. Reply.) In their supplemental reply, Doe Plaintiffs narrowed their class definition to include “all individuals whose names and/or personal identifying information (e.g., work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by [UW] that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at [the Lab] from 2010 to present.” (Id. at 1-2.)

         Doe Plaintiffs, however, did not modify their motion to include any subclasses. (See generally id.) Mr. Daleiden filed a response noting in particular that, although Doe Plaintiffs had identified three subgroups in their briefing in support of the reissuance of the preliminary injunction, Doe Plaintiffs did not address these subgroups in their supplemental class certification briefing. (See Supp. Resp. at 1-2.) On March 14, 2018, the court ordered Doe Plaintiffs and Mr. Daleiden to provide supplemental briefing on the issue of subclasses. (3/14/18 Order (Dkt. # 160).) The parties filed their responses on March 26, 2018. (See Doe Supp. Br.; Def. Supp. Br.)

         In their response, Doe Plaintiffs argue that, despite their earlier representation that they would identify subclasses to the district court following remand, they now believe that “there is no inherent or realistic danger of conflict, confusion, or tension between the putative class members, ” and so “a single class may be certified.” (Doe Supp. Br. At 4.) Nevertheless, they also alternatively propose modifying their previous overarching class definition by including subclasses for each group identified in their earlier preliminary injunction briefing and the court's November 30, 2017, order reissuing the preliminary injunction. (See Id. at 4-9.) Doe Plaintiffs' alternate proposal delineating subclasses is as follows:

All individuals whose names and/or personal 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;
2) are associated with the Birth Defects Research Laboratory; or
3) are associated with medical researchers who use fetal tissue obtained from the Birth ...

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