Opinion
CASE NO. C16-1212JLR
08-03-2016
JANE DOES 1-10, et al., Plaintiffs, v. UNIVERSITY OF WASHINGTON, et al., Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER
I. INTRODUCTION
This matter comes before the court on Plaintiffs Jane Does 1-10 and John Does 1-10's (collectively, "Plaintiffs") motion for a temporary restraining order ("TRO"). (Mot. (Dkt. # 2).) Plaintiffs seek to prevent Defendant University of Washington from disclosing personal information pursuant to requests issued by Defendants David Daleiden and Zachary Freeman under the Public Records Act ("PRA"), RCW ch. 42.56. (See generally Mot.; Compl. (Dkt. # 1); 1st Am. Compl. (Dkt. # 22); 2d Am. Compl. (Dkt. # 23).) Having considered Plaintiffs' motion and the related filings, the appropriate portions of the record, and the relevant law, and considering itself fully advised, the court GRANTS the motion and RESTRAINS the University of Washington from releasing, altering, or disposing of the requested documents or disclosing the personal identifying information of Plaintiffs pending further order of this court.
The court finds a hearing unnecessary and impracticable in advance of the release of records, which is scheduled to begin on August 5, 2016.
II. BACKGROUND
On February 9, 2016, Mr. Daleiden issued a PRA request to the University of Washington seeking 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 University of Washington Birth Defects Research Laboratory from 2010 to present." (Power Decl. (Dkt. # 5) ¶ 4, Ex. C (emphasis in original).) On February 10, 2016, Mr. Freeman issued a similar PRA request to the University of Washington. (Id. ¶ 6, Ex. E.) Among other documents, these PRA requests sought communications between the University of Washington or its Birth Defects Research Laboratory on the one hand, and Cedar River Clinics, Planned Parenthood of Greater Washington and North Idaho, or certain employees of Cedar River and Planned Parenthood on the other hand. (Id. at 1; see also Power Decl. Ex. C at 1.) On July 21, 2016, the University of Washington notified Plaintiffs that absent a court order issued by August 4, 2016, it would provide documents responsive to Mr. Daleiden's PRA request without redaction at 12:00 p.m. on August 5, 2016. (Does 1, 3-8 Decls. (Dkt. ## 6, 8-13) ¶ 3, Ex. A.) On July 26, 2016, the University of Washington issued a similar notice related to Mr. Freeman's request and indicated that absent a court order, the University of Washington would provide responsive documents without redaction on August 10, 2016. (Does 1, 3-4 Decls. ¶ 4, Ex. B.)
Jane Doe 2 omitted exhibits from her declaration, but the other Doe declarations sufficiently demonstrate that the University of Washington issued similar letters to individuals implicated in the relevant PRA request.
Plaintiffs object to disclosure of this information in unredacted form because it includes personal information such as direct work phone numbers, work emails and personal cell phone numbers. (Mot. at 4; see, e.g., Doe 5 Decl. ¶ 5 ("Any email contacts I had with the BDRL would have highly personal information such as my name, email address, and phone number.").) On August 1, 2016, Plaintiffs notified Defendants of their intent to file a complaint and motion for a TRO on August 3, 2016. (Power Decl. ¶¶ 14-15, Exs. M, N, O.) Over the next two days, Plaintiffs discussed with Mr. Daleiden (through counsel) and Mr. Freeman the possibility of amending the PRA requests to allow for redactions. (Id. ¶¶ 16-17, Exs. P, Q.) However, the parties were unable to come to an agreement. (Id.)
Accordingly, on August 3, 2016, Plaintiffs filed a complaint on behalf of a putative class seeking to enjoin the University of Washington from issuing unredacted documents in response to the PRA requests. (Compl.; see also 1st Am. Compl. (filed the same day); 2d Am. Compl. (same).) Plaintiffs simultaneously filed a motion seeking a TRO and preliminary injunction against disclosure. (Mot.) The component of that motion seeking a TRO is now before the court.
III. ANALYSIS
Federal Rule of Civil Procedure 65 empowers the court to issue a TRO. Fed. R. Civ. P. 65. A plaintiff seeking a TRO in federal court must meet the standards for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Accordingly, Plaintiffs must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Although the court need not reach this basis for relief here, a preliminary injunction is also "appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor," provided the plaintiff also demonstrates that irreparable harm is likely and that the injunction is in the public interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
Plaintiffs' motion and the evidence submitted therewith establishes the Winter requirements. Plaintiffs demonstrate that their claim has a likelihood of success on the merits by arguing that this court has previously held that the PRA carves out disclosures that would violate individuals' rights under the state and federal constitutions. (Mot. at 7-13 (citing Roe v. Anderson, No. C14-5810RBL, 2015 WL 4724739 , at *3 (W.D. Wash. Aug. 10, 2015)).) Plaintiffs also show that absent a temporary restraining order, they will likely suffer irreparable harm to their rights and safety via disclosure of personal identifying information. (See Mot. at 5-6, 15; see also Doe Decls.) In contrast, Mr. Daleiden and Mr. Freeman will suffer minimal prejudice from a slight delay in disclosure, during which the parties will brief the motion for a preliminary injunction and the court will rule on that aspect of Plaintiffs' motion. The court therefore concludes that the balance of equities favors Plaintiffs and that a TRO is in the public interest.
The TRO entered herein not only prevents the University of Washington from releasing the subject documents, but also from altering or disposing of them. This requirement ensures that the only foreseeable prejudice that Mr. Daleiden and Mr. Freeman face is from the minor delay in obtaining the documents. --------
The court may grant a TRO "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully . . . restrained." Fed. R. Civ. P. 65(c). However, a district court "may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct." Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003). The only prejudice to Mr. Daleiden and Mr. Freeman is the minimal burden caused by the delay. See supra n.4. The court therefore finds that any potential costs and damages to Defendants are de minimis and declines to impose a bond requirement.
Although Defendants have received notice of this lawsuit and motion, they have not had the opportunity to respond. See Local Rules W.D. Wash. LCR 65(b)(5) ("If the movant meets the requirements of Fed. R. Civ. P. 65(b), the court may grant the motion without awaiting a response."); cf. Fed. R. Civ. P. 65(b)(1) ("The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."). The court could not reasonably obtain a response from Defendants because absent an order from the court, the University of Washington will disclose the information less than 48 hours from now. (See generally Does 1-8 Decls. Exs. A, B.) Plaintiffs have demonstrated immediate and irreparable injury that would ensue and show that Defendants have actual notice of the lawsuit. (See generally Does 1-8 Decls.; see also Power Decl. ¶¶ 14-15, Exs. M, N, O.) Accordingly, the court finds it appropriate to impose the TRO without first considering a response from Defendants.
Pursuant to Federal Rule of Civil Procedure 65(b)(2), the TRO instituted by this order expires 14 days from the date of filing unless the court issues an extension. See Fed. R. Civ. P. 65(b)(2). In addition, the court RENOTES Plaintiffs' motion for a preliminary injunction for August 19, 2016. See Fed. R. Civ. P. 65(b)(3) ("If the [TRO] is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time . . . ."). Defendants' response is due no later than August 15, 2016, and Plaintiffs' reply, if any, is due no later than August 19, 2016. Plaintiffs must serve Defendants as soon as possible and in no event later than August 5, 2016, and must promptly file proof of service on the docket. // //
IV. CONCLUSION
Based on the foregoing analysis, the court GRANTS Plaintiffs' motion for a temporary restraining order (Dkt. # 2) and RESTRAINS the University of Washington from releasing, altering, or disposing of the requested documents or disclosing the personal identifying information of Plaintiffs pending further order of this court. Unless the court orders otherwise, the TRO expires 14 days from the date of this order at 11:59 PM. The court RENOTES Plaintiffs' motion for a preliminary injunction (Dkt. # 2) for August 19, 2016. Finally, the court ORDERS Plaintiffs to serve Defendants no later than August 5, 2016, and file proof of service on the docket.
Dated this 3rd day of August, 2016.
/s/_________
JAMES L. ROBART
United States District Judge