See more of our coverage on the effects of the misleading Center for Medical Progress videos here.

The Ninth Circuit Court of Appeals is poised to decide whether the National Abortion Federation (NAF) or the Center for Medical Progress (CMP), the anti-choice organization behind a Planned Parenthood smear campaign, will emerge victorious in the discovery battle that has raged between the parties for weeks.

NAF has so far successfully stymied CMP’s efforts to release additional videos. In late July, U.S. District Court Judge William Orrick issued a temporary restraining order (TRO) in NAF’s favor, blocking CMP from publishing videos containing information NAF alleges CMP stole.

CMP maintains that the temporary restraining order and any preliminary injunction that Orrick might issue constitutes prior restraint, or pre-publication censorship, and is a violation of CMP’s First Amendment right to freedom of speech.

CMP also claims that it has uncovered evidence of criminal activity on the part of NAF and its members, including Planned Parenthood, and that releasing the videos is of grave public importance.

NAF contends that CMP stole information from NAF by signing confidentiality and nondisclosure agreements by which CMP never intended to be bound, in order to gain access to NAF’s annual meetings and members fraudulently and under false pretenses.

Before the Ninth Circuit is CMP’s claim that Orrick should be forbidden from allowing NAF to conduct discovery in support of NAF’s effort to obtain a preliminary injunction blocking CMP from releasing any further videos obtained in CMP’s infiltration of NAF’s annual meetings in 2014 and 2015.

Following an emergency request filed by CMP last week, the Ninth Circuit Court of Appeals put a hold on the discovery proceedings in the underlying lawsuit so that it would have sufficient time to consider CMP’s petition and NAF’s response.

The Ninth Circuit invited Orrick to file a response to CMP’s emergency request, which he did on Friday.

NAF filed its lawsuit in late July alleging civil conspiracy, racketeering, fraud, and breach of contract, among other civil and criminal allegations, stemming from the release of video tapes deceptively edited to suggest that NAF members, including Planned Parenthood, are engaged in illegal trafficking of fetal baby parts. NAF sought and won a temporary restraining order blocking CMP from releasing any more videos.

CMP responded by filing an anti-SLAPP motion under a statute in California regulating strategic lawsuits against public participation, or SLAPP lawsuits. SLAPP lawsuits are often filed in retaliation for speaking out on a public issue or controversy. They are designed to force defendants to rack up attorneys fees in defending a meritless lawsuit and to discourage speech about issues of public significance.

California’s anti-SLAPP statute permits a defendant to file an anti-SLAPP motion early in the litigation process. If successful, the statute ends the case and entitles a defendant to recoup attorneys fees from the plaintiff. The statute is intended to act as a deterrent against filing meritless SLAPP lawsuits by making it costly for plaintiffs to defend against anti-SLAPP motions and therefore costly for plaintiffs to file lawsuits designed to keep tied up in litigation people who are trying to exercise their First Amendment rights.

A key feature of California’s anti-SLAPP statute is that with limited exceptions, all discovery proceedings are automatically put on hold as soon as a defendant files an anti-SLAPP motion.

This provision is designed to prevent plaintiffs from abusing the discovery process by overwhelming defendants to SLAPP lawsuits with requests for documents and other information.

When CMP filed its anti-SLAPP motion, it sought an automatic hold on all discovery under California law, but Orrick refused CMP’s request because California’s law conflicts with federal law. Citing Ninth Circuit precedent that the provision automatically putting a hold on discovery in California’s anti-SLAPP statute does not apply in federal court if the anti-SLAPP motion involves factual issues (as opposed to purely legal questions), Orrick ordered discovery so that he would have enough information to resolve the issues CMP raised in its anti-SLAPP motion.

Foremost among the factual issues involved in the dispute is whether or not CMP breached the confidentiality agreements it signed with NAF, and if so, how.

NAF contends that CMP waived any First Amendment claims it might have when it signed the confidentiality and non-disclosure agreements. NAF seeks discovery from CMP to prove its waiver claim.

For its part, CMP does not dispute that it signed the confidentiality agreements. It contends, however, that it has a blanket right under the First Amendment to release further videos. CMP argues that even if it did waive its First Amendment rights, which it disputes, any waiver is invalid. There is no set of facts that would warrant an infringement of its First Amendment rights, according to CMP. The anti-choice front group maintains that the temporary restraining order and any preliminary injunction Orrick might issue constitutes a prior restraint on CMP’s right to freedom of speech.

In the response he filed with the Ninth Circuit on Friday, Orrick pointed out that CMP could not point to any case in the Ninth Circuit in which a court ruled that a waiver of First Amendment rights—the sort of waiver that CMP does not dispute that it signed—was invalid.

Orrick went on to argue that he cannot evaluate the merits of CMP’s First Amendment claims without reviewing the “targeted discovery” that he ordered.

[T]he defendants have concealed from NAF (and thus the Court) the information they took from NAF and assert a blanket right to disclose it under the First Amendment. As I have indicated since I issued the TRO, I am in the dark whether any of this information is of public interest and would be protected by the First Amendment notwithstanding the defendants’ waiver of their First Amendment rights. What I know for sure is that the defendants signed a nondisclosure agreement and want to disclose information likely gained by false pretenses that is protected by the agreement. The only way to sort out the waiver, privacy and First Amendment issues in this case is to review the targeted discovery that I have ordered.

Orrick implied that CMP’s anti-SLAPP motion is “substantively baseless”:

The defendants’ reasoning in their petition would seem to allow a party, in cases involving the First Amendment, to obtain an automatic discovery stay simply by filing a substantively baseless motion to dismiss that is framed in a way that does not raise factual issues on its face.

The Ninth Circuit is likely to rule on CMP’s emergency motion relatively quickly due to the emergency nature of the discovery dispute between NAF and CMP, and the key First Amendment issues at stake.