CHARLES E

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McDERMOTT WILL & EMERY LLP

CHARLES E. WEIR (State Bar No. 211091)cweir@mwe.com

GREGORY JONES (State Bar No. 229858)

gjones@mwe.com

KATE M. HAMMOND (State Bar No. 293433)

khammond@mwe.com2049 Century Park East, Suite 3800Los Angeles, CA 90067Telephone:310.277.4110

Facsimile:310.277.4730

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF LOS ANGELES CENTRAL DISTRICTSTEMEXPRESS, LLC, and CATHERINE DYER, Plaintiffs,

v.

THE CENTER FOR MEDICAL PROGRESS, BIOMAX PROCUREMENT SERVICES, LLC, DAVID DALEIDEN (aka ROBERT SARKIS), DOE 1 (aka SUSAN TENNENBAUM), and DOES 2 through 100, inclusive,Defendants.CASE NO.plaintiffs ex parte Application for A Temporary Restraining Order, Order to Show Cause re: Preliminary Injunction, and Expedited Discovery Order; memorandum of points and authorities; appendix of non-california authorities[compendium of evidence filed concurrently herewith; proposed order lodged concurrently herewith]

HearingDate: July 27, 2015Time: 8:30 a.m.

Dept: _____Judge: _____

SUMMARY OF CASE AND REQUESTED RELIEF

Plaintiffs StemExpress, LLC and Catherine Dyer are forced to file this action and bring this ex parte application for a temporary restraining order to prevent the irreparable damage that will ensue when Defendants imminently release a video on the internet (possibly as soon as tomorrow) that was secretly and illegally recorded by defendant David Daleiden using a fake name (Robert Sarkis) and pretending to work for a fake company (defendant BioMax Procurement Services, LLC) as part of the recently-launched public campaign by defendant The Center for Medical Progress (CMP) against Planned Parenthood involving one of the most explosive subjects in American culture abortion and the use of fetal tissue to further medical research. Defendants secret recording of their meeting with Plaintiffs is a clear violation of Californias Invasion of Privacy Act, which criminalizes the non-consensual recording of confidential communications. Pen. Code 632(a). Indeed, late last week, both the United States Department of Justice and the California Department of Justice initiated criminal investigations into Defendants publication of Daleidens other secretly-recorded videos of Planned Parenthoods physicians. Plaintiffs are next in line. It is not just the privacy invasion caused by the illegal videos release that drives the need for emergency injunctive relief here although that alone justifies granting this application under the Privacy Act. See Pen. Code 637.2(b). Releasing the video will draw StemExpress and Dyer deeper into the vortex of public animosity stirred up by CMPs crusade to brand everyone associated with Planned Parenthood as evil criminals, which will not only have (and already has had) a detrimental impact on StemExpresss business reputation and relationships, but more importantly, it presents a real threat of danger to Dyers personal safety. Even with StemExpresss limited exposure in CMPs nascent battle thus far, which has been the publication of StemExpresss confidential and sensitive business documents, Dyer has received numerous threats of physical violence, prompting the involvement of law enforcement and the hiring of a personal security team. Indeed, just this past Saturday night, Dyers security chased away a suspicious character photographing her home. Defendants imminent release of the video will only aggravate an already-fragile situation. Only an injunction can prevent this. Application

Plaintiffs hereby apply on an ex parte basis for a temporary restraining order and an order requiring defendants The Center for Medical Progress, BioMax Procurement Services, LLC, David Daleiden, and Doe One (aka Susan Tennenbaum), as well as all officers, directors, shareholders, members, employees, agents, and all persons acting with The Center for Medical Progress or BioMax Procurement Services, LLC or on their behalf, to show cause why a preliminary injunction should not be issued pending trial in this action as follows:1. refrain from (i) any manner of releasing, publishing, disclosing, posting, sharing, uploading, downloading, transferring, or any other means of disseminating (ii) any file, media, device, or document be it electronic, digital, analog, or physical in nature (iii) that contains or represents a recording of any portion (in whole or part) of (iv) any communication (verbal and non-verbal) (v) made by Catherine Dyer, Kevin Cooksy, or Megan Barr (vi) on the evening of May 22, 2015 at approximately between 4:30 p.m. PST and 6:45 p.m. PST (vii) that occurred at, near, or in the restaurant known as Bistro 33, located at 4364 Town Center Boulevard, El Dorado Hills, California 95762; and 2. refrain from (i) any manner of releasing, publishing, disclosing, posting, sharing, uploading, downloading, transferring, or any other means of disseminating (ii) any file or physical document (iii) on which StemExpress, LLC is identified, including the three documents presently posted on the Document Vault website of The Center Medical Progress, located at http://www.centerformedicalprogress.org/human-capital/document-vault/, bearing the dates January 10, 2013, March 20, 2013, and January 1, 2013. Plaintiffs hereby also apply on an ex parte basis for an order permitting Plaintiffs to conduct the following limited expedited discovery: (a) no more than 5 depositions to be noticed on 3 days and completed no later than 5 court days before any hearing on the Order to Show Cause re: Preliminary Injunction; and (b) no more than 10 document requests to which written responses and responsive documents are due within 7 calendar days from the date on which they are served. This application is made pursuant to Code of Civil Procedure 527, Penal Code 632 & 637.2(b), and Penal Code 496 & Business & Professions Code 17203 on the grounds that: (i) Plaintiffs are likely to succeed on the merits of their claims for violations of the Invasion of Privacy Act (Pen. Code 632), Penal Code 496, and Unfair the Competition Law (Bus. & Prof. Code 17203); (ii) that unless the temporary restraining order is granted, Plaintiff wills suffer irreparable injury in that Defendants have threatened to imminently release on CMPs website the video containing Plaintiffs illegally-recorded private conversation and that the release of the video, as well as the disclosure of StemExpresss confidential and sensitive business documents, will result in permanent reputational harm to StemExpress and endanger the personal safety of Dyer and the other participants of the meeting; and (iii) that the balance of hardships weighs sharply in Plaintiffs favor, as Defendants will suffer little, if any, pecuniary or constitutional harm if the requested injunction is granted.

grounds for no noticePursuant to Code of Civil Procedure 527(c)(1), Plaintiffs seek a temporary restraining without notice to Defendants on the grounds that great or irreparable injury will result to the applicant before the matter can be heard on notice. Plaintiffs have a valid fear that Defendants will release the video of their May 22 private meeting on CMPs website simply upon receiving notice of this application. This fear is founded upon the exceptional measures Defendants have used to obtain the illegal video (setting up a fake company with a fake website using fake email addresses, business cards, and brochures; and spending years undercover gathering video footage from unwitting persons), Daleidens staunch belief that his actions are not only legal, but authorized by the First Amendment, and his continued threats to release undercover material, even in the face of criminal investigations. Coupled with the push-of-a-button ease with which Defendants can release the video, the lightning speed in which it will spread throughout the internet, and the permanent and potentially-safety endangering consequences that publication will have, the only way such great and irreparable injury can be avoided is to grant the requested relief without first tipping off Defendants. See Dyer Decl. _-_; Cooksy Decl. _-_; Barr Decl. _-_; Jones Decl. _-_, Exs. _-_. Any potential harm from granting this relief without notice can be mitigated by setting a short duration period for the temporary restraining order and an expedited order to show cause hearing date. APPENDIX OF NON-CALIFORNIA AUTHORITIESPursuant to California Rules of Court 3.1113(i), Plaintiffs have appended to this application as Exhibits A-Z, the non-California authorities cited in the accompanying memorandum of points and authorities. This application is based upon the attached memorandum of points and authorities, the accompanying compendium of evidence, which contains the declarations of Catherine Dyer, Megan Barr, Kevin Cooksy, and Gregory R. Jones and the exhibits attached thereto, the complaint filed in this action on July 26, 2015, and upon such further argument or evidence as may be presented at the hearing on the application.Dated: July 26, 2015

McDERMOTT WILL & EMERY LLPBy:

CHARLES E. WEIRAttorneys for Plaintiffs

MEMORANDUM OF POINTS AND AUTHORITIES

I. introductionOn July 14, 2015, defendant The Center for Medical Progress (CMP), an anti-abortion group founded by defendant David Daleiden, launched a highly-charged public campaign accusing Planned Parenthood of illegally using partial-birth abortions to sell baby parts. The centerpiece of CMPs attack on Planned Parenthood is a series of heavily-edited and misleading videos cobbled together from secret video footage taken by Daleiden posing as an employee of a fake biomedical company and questioning Planned Parenthood doctors about the sale of fetal tissue. Californias Invasion of Privacy Act criminalizes the recording of a confidential communication without the consent of all parties. Pen. Code 632(a). Last week, both the United States Department of Justice and the California Department of Justice announced the initiation of criminal investigations into the Planned Parenthood videos released by CMP. Plaintiff StemExpress, LLC is a victim of the same illegal undercover tactics. On May 22, 2015, Daleiden (using the pseudonym Robert Sarkis) and his associate (defendant Doe One aka Susan Tennenbaum) posed as representatives of a fake biomedical company (defendant BioMax Procurement Services, LLC) and met with several employees of StemExpress, including plaintiff Catherine Dyer (the chief executive officer), Kevin Cooksy (the general counsel), and Megan Barr. The meeting occurred in a secluded restaurant in a private setting. Dyer took overt steps to ensure that their conversation was not overhead. The meeting lasted a little over two hours. Afterward, BioMax signed a nondisclosure agreement with StemExpress and obtained several of its confidential documents. It was not until CMPs release of the Planned Parenthood videos in the past weeks that Dyer and her team realized that they had been tricked by Daleiden with an identical ruse. Defendants secret recording of the May 22 meeting is a clear violation of the Invasion of Privacy Act. And because CMP has now publicly threatened to release the hundreds of hours of undercover footage it has amassed, Plaintiffs face the imminent and irreparable harm of having their illegally-recorded private conversation and their likenesses broadcast to the entire world. Defendants should be temporarily restrained and preliminarily enjoined from doing this, as authorized by the Act. See Pen. Code 637.2(b). Defendants secret video is not the only confidential information they have illegally obtained from Plaintiffs. Defendants have also acquired (and published on CMPs website) documents containing StemExpresss confidential and sensitive business information, including the identities, locations, contact information, and specimen orders of StemExpresss research clients. Exposing this information not only jeopardizes StemExpresss relationships with its clients, which are strictly confidential for proprietary research reasons, it also endangers those researchers reputations and personal safety. Even CMPs limited exposure of StemExpresss affiliation with Planned Parenthood over the past few weeks has led to serious violent threats to Dyer, which has prompted its own criminal investigation and caused her to take personal security measures. StemExpress believes that Defendants obtained copies of these documents from a former employee who publicly shares Daleidens views on abortion in violation of her express confidentiality and nondisclosure obligations. The disclosure (and continued publication) of these documents threatens the livelihood and reputation of StemExpresss business. Therefore, Defendants also should be temporarily restrained and preliminarily enjoined from doing this. StemExpress is caught in the wake of CMPs public crusade against Planned Parenthood involving one of the most explosive subjects in American culture. Given the intense news and social media attention that CMPs campaign has already garnered, it will be virtually impossible to unring the bell once the illegally-recorded video is released. Only a temporary restraining order and preliminary injunction can avoid this injustice. Plaintiffs respects Defendants right to freedom of speech, and this lawsuit is not intended to suppress the lawful exercise of those rights. But the First Amendment does not provide carte blanche to trample the privacy rights and confidentiality obligations of the citizens of this state. It provides no safe harbor here. Therefore, the Court should grant the application and issue the requested temporary restraining order, order to show cause re: preliminary injunction, and expedited discovery order.II. justification for granting relief without noticePlaintiffs seek a temporary restraining order without first providing notice to Defendants. Plaintiffs do not do so lightly and understand that obtaining injunctive relief in this context is only reserved for extraordinary situations. But Plaintiffs predicament qualifies as extraordinary. Plaintiffs have a valid fear that Defendants will release the video of their May 22 private meeting on CMPs website simply upon receiving notice of this application. This fear is founded upon the exceptional measures Defendants have used to obtain the illegal video (setting up a fake company with a fake website using fake email addresses, business cards, and brochures; and spending years undercover gathering video footage from unwitting persons), Daleidens staunch belief that his actions are not only legal, but authorized by the First Amendment, and his continued threats to release undercover material, even in the face of criminal investigations. Coupled with the push-of-a-button ease with which Defendants can release the video, the lightning speed in which it will spread throughout the internet, and the permanent and potentially-safety endangering consequences that publication will have, the only way such great and irreparable injury can be avoided is to grant the requested relief without first tipping off Defendants. Any potential harm from granting this relief without notice can be mitigated by setting a short duration period for the temporary restraining order and an expedited order to show cause hearing date. Therefore, the Court should grant this application without notice. III. factual background

A. StemExpress

StemExpress is a small life sciences company based in Placerville, California that specializes in the procurement and distribution of human blood, tissue products, primary cells, and other clinical specimens to biomedical researchers around the world for the purpose of conducting medical research. Dyer Decl. _. StemExpresss clients include almost every major medical research institution in the country, as well as many major pharmaceutical companies. Id. StemExpresss products and services support leading research institutions in the United States and internationally, including medical schools, pharmaceutical companies, and federal agencies, to provide stem cells and other human tissue critical to medical research. Id. _. Cells produced by the physicians, scientists, medical technicians, and nurses at StemExpress are currently used in research globally aimed at finding cures and treatments for cancer, diabetes, HIV/AIDS, cardiac disease, and other significant medical conditions. Id. Approximately 10 percent of StemExpresss business relates to the procurement of human fetal tissue. Dyer Decl. _. This tissue is collected from clinical abortion procedures in state licensed facilities from consented donors only. Id. Approximately 90% of the fetal tissue collected by StemExpress is shipped to its laboratory to be processed down to specific cells. Id. Medical researchers engage StemExpress to procure specific types of fetal specimens (or cells derived therefrom), and StemExpress procures those specimens from medical facilities that perform the procedures, such as Planned Parenthood. Id. _. StemExpress does not work with every Planned Parenthood affiliate in California. Id. StemExpress requires that an informed consent be discussed and signed by each donor for any donation of tissue of all types, including human fetal tissue or blood. Id. _. Protecting the privacy of its researchers and suppliers is always the highest priority at StemExpress. Dyer Decl. _. StemExpress is routinely asked to agreements with strict provisions protecting the privacy of our client-researchers, their proprietary information, and above all, the donors information. Id. This is because biomedical research is intensely competitive and based largely on proprietary intellectual property. Id. _. The consequences of unauthorized disclosure of confidential information may significantly damage the competitive position of the researcher, lost market opportunity, loss of intellectual property rights, all of which will harm the reputation of StemExpress and may expose the company to financial damages. Id. As part of its commitment to the privacy and confidentiality of its donors and clients, StemExpress also requires that each of its employees and independent contractors sign agreements that require them to maintain the confidentiality of a broad range of information and prohibit them from disclosing such information publicly. Dyer Decl. _, Exs. _( _)-_ (_). Those agreements require employees and independent contractors to maintain confidentiality after termination and to return StemExpress documents and materials upon leaving the company. Id., Exs. _( _) -_ (_). These confidentiality policies are reiterated in other employment documents, such as StemExpresss Code of Conduct and Clinic Procedures and Policies. Id. _, Exs. _(_) -_ (_). B. CMPs Publicity Campaign Against Planned ParenthoodCMP is anti-abortion group founded by Daleiden. Jones Decl. _, Ex. _ [7/15/15 Media Matters article]. CMPs ostensible objective (titled the Human Capital Project) is to expose how Planned Parenthood sells the body parts of aborted babies. Id. _, Ex. _, p. 1 [CMP Human Capital page]. CMP implores the public and Congress to take action in response to the alleged black market in aborted baby parts. Id. p. 2. CMPs website went live on July 6, 2015. Jones Decl. _, Ex. _, p. 12 [CMP Blog page]. On July 14 at 8:00 a.m. ET, CMP released a heavily-edited video from undercover footage of Daleiden posing as a representative for a fake biomedical company and questioning a doctor for Planned Parenthood about the sale of fetal tissue. Id. p. 8-11; Dyer Decl. _. Daleiden is identified as the contact for the release. Jones Decl. _, Ex. _, pp. 8-11 [CMP Blog page]. The video is edited to present a misleading story on multiple fronts. For example, the nearly 9-minute video inaccurately suggests that the Planned Parenthood clinics where the doctor works sells fetal tissue specimens to StemExpress when the truth is that StemExpress has never had a relationship with that doctor or those clinics. Dyer Decl. _. CMPs claims that the July 14 video is the product of a thousands of research hours to painstakingly gather hundreds of hours of undercover footage, dozens of eye-witness testimonies, and nearly two hundred pages of primary source documents. Jones Decl. _, Ex. _, p. 1 [CMP Human Capital page] (emphasis added). CMP promises that [t]his information will continue to be made available the public [on its website]. Id. (emphasis added). True to its word, on July 14, CMP published documents on its website that were illegally obtained from StemExpress. Jones Decl. _, Ex. _, p. 7 [CMP Blog page]; id. _, Ex. _, p. 1-4 [CMP Document Vault page]; Dyer Decl. _-_. Although certain of the StemExpress documents posted by CMP contain non-confidential information, such as StemExpresss brochure, several of the documents contain highly confidential and sensitive information, such as the names and addresses of the researchers to whom StemExpress supplies specimens. Id. The information contained on these documents suggests that they were given to CMP by Holly ODonnell, a former employee of StemExpress. Id. This inference is reinforced by certain public posts that ODonnell made on her Facebook page on July 15 linking to CMPs website, the July 14 video, and Daleidens July 15 interview with Bill OReilly. Jones Decl. _, Exs. _-_ [Facebook screenshots].

On July 21 at 8:00 a.m. ET, which is exactly one week to the minute after the July 14 video release, CMP released another heavily-edited video of undercover footage of Daleiden posing as a representative for a fake biomedical company and questioning another Planned Parenthood doctor. Jones Decl. _, Ex. _, p. 1-4 [CMP Blog page]; Dyer Decl. _. As with the July 14 video, the July 21 video attacks Planned Parenthood and accuses it of profiteering on the sale of human fetal tissue as well as changing medical techniques in response specimen orders. Jones Decl. _, Ex. _, p. 1-4 [CMP Blog page]. StemExpress is only mentioned once during the video and it was by Daleidens associate. Dyer Decl. _. Last week, both the United States Department of Justice and the California Department of Justice announced the initiation of criminal investigations into the Planned Parenthood videos released by CMP. Jones Decl. _, Ex. _ [federalist article]; id. _, Ex. _ [sacbee article]. On July 22, CMP released a statement suggesting that it would continue with its plan to release additional information and that Planned Parenthood trying to use the power of their political cronies to shut down free speech, to silence the freedom of the press, to persecute David Daleiden. Id. _, Ex. _, p.1 [CMP Blog page]. If CMPs representations about having hundreds of hours of undercover footage is true, then based on its promise to continue to publicly release the footage and its practice of releasing edited undercover videos of its meetings with companies at 8:00 a.m. ET on each Tuesday for the last two weeks, it is reasonable to expect that CMP will publish on its website another video at 8:00 a.m. ET on Tuesday, July 28. C. Defendants Illegal Recording Of StemExpresss EmployeesIn April 2015, Megan Barr, the Procurement Manager of StemExpress, attended a womens health conference in Baltimore, Maryland. Barr Decl. _. During the conference, Barr was approached by two people who claimed that their names were Robert Sarkis and Susan Tennenbaum. Id. _. These people stated that they work for a company called BioMax Procurement Services, LLC (BioMax), which they claimed was a company that also procured and distributed human fetal tissue. Id. Sarkis and Tennenbaum asked Barr a number of questions concerning StemExpresss business and pricing, expressed interest in partnering with StemExpress, requested a meeting with StemExpresss chief executive officer (Catherine Dyer), and provided Barr with their email addresses (bob@biomaxps.com; susan@biomaxps.com). Id. On May 19, Sarkis emailed Barr stating that he would be in the Bay Area meeting with investors during the upcoming weekend and invited Barr and Dyer to be his guests for lunch or dinner in Sacramento on May 22. Barr Decl. _, Ex. _. The parties agreed to meet at Bistro 33, a restaurant in El Dorado Hills, California at 4:30 p.m. on May 22. Id. _, Ex. _. Dyer chose that restaurant because at the time they were scheduled to meet, the restaurant typically has open seating in its large dining room with remote tables and is typically only sparsely attended before the regular evening dinner period. Dyer Decl. _. On May 22, Dyer, Barr, and Kevin Cooksy (StemExpresss Vice President of Corporate Development and Legal Affairs) attended a dinner meeting with Sarkis and Tennenbaum at Bistro 33. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. Unbeknownst to them at the time, the man posing as Bob Sarkis was actually defendant David Daleiden. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. Dyer, Barr, and Cooksy arrived at the restaurant together at around 4:30 p.m. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. At that time, there were only about 10-12 of people dining at the restaurant. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. They were seated in a remote area of the restaurant situated on a segregated floor that had no other diners. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. Other than the staff, the only other people at the restaurant were located at the bar near the end of the main dining room and outside on the patio. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. The main dining area was virtually empty accept for them. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. During the meeting, Sarkis and Tennenbaum asked numerous questions concerning StemExpresss fetal tissue procurement business, including how it develops relationships with fetal tissue clinics, the financial interchange between the clinics and StemExpress and StemExpresss revenues, and specific abortion and tissue collection practices used by physicians. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. In addition, Tennenbaum also asked Dyer personal questions concerning her family and their opinions about StemExpresss work procuring fetal tissue. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _.

Throughout the meeting, whenever any restaurant employees approached the table, Dyer would put her hand up to the stop conversation until they were alone again. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. And when another dining party was finally seated near the table, Dyer and Cooksy both asked Tennenbaum to lower her voice after she began speaking loudly. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. Neither Dyer, Barr, nor Cooksy believed that anyone else at the restaurant was in a position to overhear or record their conversation. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. To the contrary, the conversation was only audible to the persons sitting at their table. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. Dyer, Barr, and Cooksy believed that their conversation during the May 22 meeting with Sarkis and Tennenbaum was confidential. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. At no point did any of them know, believe, or consent to the conversation being recorded (by video or any other means) by either Sarkis or Tennenbaum. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _. And if they had known that this was the intention, they never would have agreed to meet with them or answer the questions they asked about StemExpress or their personal lives. Dyer Decl. _; Barr Decl. _; Cooksy Decl. _.Continuing the ruse after the May 22 meeting, Sarkis made repeated requests for StemExpresss confidential documents. Cooksy Decl. _-_, Ex. _. StemExpress repeatedly rebuffed Sarkiss requests until BioMax had executed a nondisclosure agreement. Id. After delaying its consent to do so, Tennenbaum finally signed the agreement for BioMax. Dyer Decl. _, Ex. _. Thereafter, on June 25, StemExpress provided Sarkis with the requested confidential documents, and that was the last communication with Sarkis, Tennenbaum, or anyone else on behalf of BioMax. Cooksy Decl. _, Ex. _; Dyer Decl. _; Barr Decl. _. Based on the series of video releases made by CMP starting on July 14, CMPs admission of having hundreds of hours of undercover video footage, the fact that the Planned Parenthood doctors were questioned by the same people that pretended to be representatives of BioMax using the same line of questions during the May 22 meeting with Dyer, Barr, and Cooksy, the fact that Daleiden was involved in all three meetings posing as a representative for a fake biomedical company, and looking back in hindsight at the strange behavior exhibited by Sarkis and Tennenbaum during the May 22 meeting, Dyer, Barr, and Cooksy each believe that Daleiden and/or the woman posing as Tennenbaum recorded their private conversation on May 22 and imminently intend to release the video of their meeting on CMPs website. Dyer Decl. _-_; Barr Decl. _-_; Cooksy Decl. _-_. IV. plaintiffs are ENTITLED TO A TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND EXPEDITED DISCOVERY ORDER

A. Legal Standard Applicable to Temporary Restraining Orders

Injunctive relief is generally available when it appears that: (1) the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; (2) the commission or continuance of some act during the litigation would produce great or irreparable injury; (3) that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action; (4) When pecuniary compensation would not afford adequate relief; and (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. Civ. Proc. Code 526(a)(1)-(5).

To obtain a temporary restraining order, an applicant must satisfy two statutory requirements: (1) that great or irreparable injury will result to the applicant before the matter can be heard on notice; and (2) that the opposing party is informed about the time and place of the application. Civ. Proc. Code 527(c)(1)-(2). In deciding whether to issue a temporary restraining order, courts must assess two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits at trial; and (2) the interim harm that the plaintiff is likely to sustain if the [restraining order] were denied as compared to the harm that the defendant is likely to suffer if the [order] were issued. Church of Christ in Hollywood v. Superior Court, 99 Cal. App. 4th 1244, 1251 (2002) (quoting IT Corp. v. County of Imperial, 35 Cal. 3d 63, 69-70 (1983)); see also Fleishman v. Superior Court, 102 Cal. App. 4th 350, 355-356 (2002). Courts evaluate these two factors on a continuum such that [t]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. Right Site Coalition v. Los Angeles Unified School Dist., 160 Cal. App. 4th 336, 338-339 (2008). Furthermore, if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that partys inability to show that the balance of harms tips in his favor. Common Cause v. Board of Supervisors, 49 Cal. 3d 432, 441-442 (1989). B. Plaintiffs Will Likely Prevail On Their Claims For Violation Of The Privacy Act And Receipt Of Stolen Property/Unfair Competition1. Violation Of The Invasion Of Privacy Act (Pen. Code 632)Californias Invasion of Privacy Act criminalizes the recording of a confidential communication without the consent of all parties to the communication. Pen. Code 632(a). The Act is designed to effectuate Californias strong public policy interest in protecting the privacy of its citizens. See Flanagan v. Flanagan, 27 Cal. 4th 766, 775 (2002). To that end, courts are required to liberally construe section 632 to effectuate [this] important public policy. Kight v. CashCall, Inc., 231 Cal. App. 4th 112, 130 (2014). The Act specifically authorizes any person injured by a violation of Section 632 to bring an action to enjoin and restrain any violation. Pen. Code 637.2(b) (emphasis added). The Act defines a confidential communication as any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Pen. Code 632(c). The Supreme Court has interpreted this definition to mean that a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan, 27 Cal. 4th at 768 (citing Coulter v. Bank of Am., 28 Cal. App. 4th 923, 929 (1994) and Frio v. Superior Court, 203 Cal. App. 3d 1480, 1488 (1988)). Whether a party had an objectively reasonable expectation that a communication is not being overheard or recorded depends on the circumstances surrounding the communication. Kight, 231 Cal. App. 4th at 133; see also Coulter, 28 Cal. App. at 929. Relevant circumstances include the content of the communication, the location of the communication, actions taken by the party to maintain the confidentiality of the communication, the identity of the party recording the communication, and the partys awareness of the recording. See, e.g., Coulter, 28 Cal. App. 4th at 929; Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 169 (2003); Cuviello v. Feld Entmt, Inc., 304 F.R.D. 585, 591 (N.D. Cal. 2015); Bernstein v. United Collection Bureau. Inc., No. 13-cv-01251, 2013 U.S. Dist. LEXIS 158451, at *9 (S.D. Cal. Nov. 5, 2013).Consistent with this approach, courts have held that the mere presence of others or the fact that the communication occurred in a public setting does not automatically exclude it from protection under the Act. See Lieberman, 110 Cal. App. 4th at 169 (The presence of others does not necessarily make an expectation of privacy objectively unreasonable .); Cuviello, 304 F.R.D. at 591. Indeed, when a communication occurs in a public setting or in the presence of others, a court still must evaluate the totality of the circumstances surrounding the communication. Turnbull v. ABC, No. 03-3554, 2004 U.S. Dist. LEXIS 24351, at *26-34 (C.D. Cal. Aug. 19, 2004) (evaluating communication occurring during a casting workshop); Cuviello, 304 F.R.D. at 591 (evaluating communication occurring on a public sidewalk); Wilkins v. Natl Broad. Co., 71 Cal. App. 4th 1066 (1999) (evaluating communication occurring at a restaurant); Shulman v. Grp. W Productions, Inc., 18 Cal. 4th 200, 235 (1998) (evaluating communication occurring during a rescue effort); Vera v. OKeefe, No. 10-cv-1422, 2012 U.S. Dist. LEXIS 112406, *13-15 (S.D. Cal. Aug. 9, 2012) (evaluating communication occurring in the office of community service organization); Lieberman, 110 Cal. App. 4th at 169 (evaluating communication occurring in the presence of an undisclosed third party). As the district court noted in Turnbull, if every public conversation was automatically excluded from protection, it would vitiate the statute. 2004 U.S. Dist. LEXIS 24351, at *26. Plaintiffs will likely prevail in establishing that Defendants violated Section 632 of the Act. First, the weight of the evidence provides a strong inference that Daleiden and Tennenbaum recorded their conversation with Dyer, Cooksy, and Barr on May 22. Dyer Decl. _-_; Cooksy Decl. _-_; Barr Decl. _-__; Jones Decl. _-_, Exs. _-_. Indeed, the entire meeting fits squarely within the modus operandi that Defendants have displayed through the release of the other undercover videos published on CMPs website. Jones Decl. _, Ex. _. Second, the May 22 conversation was confidential for purposes of the Act. Although the May 22 conversation occurred in a public restaurant, that fact alone is not legally dispositive. See Lieberman, 110 Cal. App. 4th at 169. At Dyers request, the meeting was held at time when the restaurant would not be crowded (4:30 p.m.), the restaurant was in fact not crowded, they were seated in a remote area of the restaurant, Dyer would stop the conversation anytime a staff member approached the table, and Dyer instructed Tennenbaum to lower her voice when she suspected that it might be possible that Tennenbaum might be overheard. Dyer Decl. _-_; Cooksy Decl. _-_; Barr Decl. _-__. Furthermore, Dyer, Cooksy, and Barr all considered the conversation to be private, they did not believe that they were being overheard or recorded, they did not consent to being recorded, and they would not have participated in the meeting if they had known that they were going to be recorded. Dyer Decl. _-_; Cooksy Decl. _-_; Barr Decl. _-__. Under these facts and a liberal construction of the Act, the Court can and should conclude that Dyer, Cooksy, and Barr each had an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan, 27 Cal. 4th at 768. Therefore, the May 22 conversation was confidential within meaning of the Invasion of Privacy Act, and Defendants non-consensual recording of the conversation constitutes a violation of the statute. Plaintiffs are entitled to all available relief under Section 637.2, including an injunction. 2. Receipt Of Stolen Property (Pen. Code 496) & Unfair CompetitionCalifornia law criminalizes the knowing receipt of stolen property. Pen. Code 496(a). It also authorizes victims to bring a civil action seeking three times the amount of actual damages as well as reasonable attorneys fees and costs. Id. 496(c). For purposes of this section, property includes proprietary business documents and trade secrets. See People v. Parker, 217 Cal. App. 2d 422 (1963) (confidential advance telephone directory supplements, listing new subscribers, are property); People v. Gopal, 171 Cal. App. 3d 524 (1985) (trade secrets). A criminal conviction is not a prerequisite to suit. See Bell v. Feibush, 212 Cal. App. 4th 1041, 1046 (2013). In addition, Californias Unfair Competition Law (UCL) prohibits unlawful business practices, and such practices can be enjoined. Bus. & Prof. Code 17200, 17203. Plaintiffs will probably prevail in establishing that Defendants violated Penal Code 496, and consequently the UCL. First, Defendants clearly possess confidential documents belonging to StemExpress. Jones Decl. _-_, Exs. _-_; Dyer Decl. _-_. Certain of these documents (the January 2013 fax; the March 2013 email; the January 2013 bonus policy) clearly contain highly confidential and sensitive information, including the identities, locations, contact information, and specimen orders of StemExpresss research clients. Dyer Decl. _. Second, the weight of the evidence provides a strong inference that these documents were acquired from a former employee in violation of her express confidentiality and nondisclosure obligations. Id. _-_, Exs. _-_. Accordingly, Defendants have no legal right to possess, let alone publish, the above-identified documents. Therefore, they are in violation of Penal Code 496, the UCL, and subject to injunctive relief. C. Plaintiffs Face Irreparable Harm Unless Injunctive Relief Is GrantedThe central goal of provisional injunctive relief is to preserve the status quo and to avoid irreparable harm. See Dodge, Warren & Peters Ins. Services, Inc. v. Riley, 105 Cal. App. 4th 1414, 1418 (2003). Irreparable harm includes both (a) harms arising from wrongs of a continuing character and (b) harms in which monetary compensation would not afford adequate relief or it would be extremely difficult to ascertain the amount that would afford adequate relief. See People ex rel. Gow v. Mitchell Brothers Santa Ana Theater, 118 Cal. App. 3d 863, 870-871 (1981); Wind v. Herbert, 186 Cal. App. 2d 276, 285 (1960). Examples of such irreparable harm include the continuous publication of injurious media (Gow, 118 Cal. App. 3d at 870-871), damage to reputation (Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 520 (9th Cir. 1984)), loss of customer goodwill (MCA Records, Inc. v. Newton-John, 90 Cal. App. 3d 18, 23 (1979)), and loss of profits (id.). Plaintiffs face irreparable harm from Defendants illegal conduct on several levels. First and foremost, if Defendants release the illegally-recorded video of the May 22 confidential conversation on CMPs website, it will be distributed to a staggeringly-broad audience, especially considering how much attention CMPs campaign has already garnered from the news media, social media, legislators, and now law enforcement. In that instant, Plaintiffs private conversation will be broadcasted to the entire world. Given the permanence of information posted on the internet, that moment can never be undone. In other words, there is no way to unring the bell when Defendants publish the video. The threat of Defendants committing this permanent act is by their own admission imminent, and possibly as soon as Tuesday, July 28, at 8:00 a.m. ET. Jones Decl. _, Ex. _. The fundamental purpose of Californias Invasion of Privacy Act is to protect the privacy interests of its citizens by outlawing the surreptitious recording of private conversations. The Act expressly grants victims the right to obtain seek injunctive relief to minimize and remedy violations of the statute. Pen. Code. 637.2(c). Defendants imminent release of the illegally-recorded video supplies the irreparable harm necessary to justify a temporary restraining order prohibiting Defendants publishing or otherwise disseminating the video and any other method by which the May 22 meeting may have been recorded. Second, in addition to the privacy harm associated with Defendants publicly distributing an illegal recording of Plaintiffs private conversation, Plaintiffs also face a genuine safety risk if the video is released. Dyer Decl. _-_. Indeed, even CMPs limited exposure of StemExpresss affiliation with Planned Parenthood over the past few weeks has led to several threats of death and other physical violence to Dyer, which has prompted its own criminal investigation and caused her to take personal security measures. Id. _. The additional attention a misleadingly-edited video will draw to StemExpress will undoubtedly amplify the risk that such threats will increase in both volume and intensity. Id. Of particular concern is that the video will not only disclose the identities of the StemExpress employees who participated in the meeting, it will expose their faces, such that they can be easily recognized in public. Id. The legitimate threat posed by this increased safety risk alone constitutes sufficient irreparable harm to issue the requested injunctive relief. Finally, StemExpress also faces irreparable harm from Defendants release of what is likely to be a misleadingly-edited version of the May 22 meeting as well as their publication (and continued publication) of StemExpress confidential documents. First, the publication of StemExpresss confidential documents that identify the names and orders of its medical research clients could jeopardize its contractual relationships with those clients. Dyer Decl. _. Second, at least one procurement facility has suspended its collection activities out of caution and fear of CMPs association with violent activist groups and harassment tactics all of which CMP is proud to admit on its website and to its followers. Id. Third, one of StemExpresss clients has also suspended work with StemExpress due to the national attention CMP has created with its malicious and harmful activities. Id. Fourth, StemExpress has lost blood and bone marrow donors that are crucial to our business. Id. Fifth, StemExpress has been the subject of several congressional inquiries concerning its procurement practices related to fetal tissue. Id. The congressional hearings are specifically related to misrepresented, false, and intentionally misleading videos that CMP has released. Id. These problems will only be exacerbated if Defendants proceed as planned. Id. Any or all of these irreparable injuries will occur unless Defendants are temporarily restrained and preliminarily enjoined from releasing the video and publishing StemExpresss confidential documents. D. The Balance of Harms Weighs Significantly In Plaintiffs Favor

As discussed above, Plaintiffs face serious, imminent, and irreparable harm. In contrast to the grave injury facing Plaintiffs, Defendants will suffer little, if any, harm if the requested relief is granted. An injunction will not have any monetary impact on any of the Defendants, as CMP purports to be a non-profit organization, BioMax is a fake company, and Daleiden professes to have committed these trespasses as a citizen journalist. Jones Decl. _, Ex. _, p. 1 [CMP About Us page]. Although Defendants will undoubtedly claim that the injunction represents a suppression of free speech (see id. _, Ex. _, p. 1 [CMP Blog page]), their First Amendment rights are not impinged here at all. Plaintiffs respect Defendants right to freedom of speech. They are free to engage in whatever lawful public speech they want concerning the topic of abortion or the procurement of fetal tissue for research purposes. But the First Amendment does not provide carte blanche to trample the privacy rights and confidentiality obligations of the citizens of this state, which is precisely the situation here. The balance of harms weighs significantly in Plaintiffs favor. E. The Court Should Plaintiffs To Conduct Expedited DiscoveryFor good cause, courts may allow parties to propound discovery before the expiration of the statutory holds triggered by the filing of an action and to shorten the default statutory notice periods. See Civ. Proc. Code 2025.201(b) (plaintiff may serve deposition notices before expiration of discovery hold), 2031.020(d) (plaintiff may serve document requests before expiration of discovery hold), 2025.201(b) (court may shorten time to schedule deposition), 2031.030(b)(2) (court may shorten time to respond to document request). Regardless of whether the Court grants the requested temporary restraining order, the Court should issue an order permitting Plaintiffs to conduct limited discovery on an expedited basis for the purpose of identifying the following limited subjects: (i) all recordings of the May 22 meeting; (ii) the extent to which any such recording has already been disseminated, if at all; (iii) all StemExpress documents that are in Defendants possession; (iv) the manner in which Defendants came to possess such documents; and (v) the extent to which these documents have already been disseminated, if at all. To pursue these limited topics, Plaintiffs request an order allowing to conduct them to conduct (a) no more than 5 depositions to be noticed on 3 days and completed no later than 5 court days before any hearing on the Order to Show Cause re: Preliminary Injunction and (b) no more than 10 document requests to which written responses and responsive documents are due within 7 calendar days from the date on which they are served. As demonstrated in this application good cause exists for this expedited discovery. V. conclusionFor the foregoing reasons, Plaintiffs respectfully request that the Court grant this ex parte application and enter the requested temporary restraining order, order to show cause re: preliminary injunction, and expedited discovery order.Dated: July 26, 2015

McDERMOTT WILL & EMERY LLPBy:

CHARLES E. WEIRAttorneys for Plaintiffs

Although CMP has a registered agent for service of process in California, the corporate address listed on the Secretary of States website is a shopping mall in Irvine, California. Jones Decl. __.

As with CMP, BioMaxs corporate address is also a shopping mall (in Norwalk, California). Jones Decl. _. But unlike CMP, BioMax does not have a registered agent for service of process because he resigned on July 7 one day after CMPs website went live. Id.

In Turnbull, the court identified a number of hypothetical scenarios where public conversations would still be considered confidential under the Act:

By way of example, a recovering alcoholic in an AA meeting, or a participant in an anger management class, might reasonably expect her communications to other class members to be kept private. Customarily, in law school and undergraduate university lectures, students must ask for the instructors permission prior to recording university lectures. Closer to the point, if a group of aspiring authors decided to attend a seminar with a writer in residence at a local university in order to obtain feedback and criticism regarding unfinished work, it would probably be reasonable for them to assume their activities, readings, and the instructors comments, were not being overheard by a person who was not similarly situated; let alone being recorded by a journalist. Similarly, if a company executive or attorney attended night classes in graphic design with a mind to switch careers at a later date, she might reasonably expect her attendance was not being photographically memorialized or beamed to the living room of every house in America. Moreover, an aspiring artist or graphic designer might expect that any experimental work produced purely for commentary, or as an assignment for class, would not be recorded or disseminated beyond the seminar; let alone broadcast on national television. Otherwise, the student probably would not produce the work for critique.

2004 U.S. Dist. LEXIS 24351, at *33-34.

DM_US 62765281-2.097549.0011

ex parte application for temporary restraining order, order to show cause, and expedited discovery

DM_US 62765281-2.097549.0011 - 17 -

ex parte application for temporary restraining order, order to show cause, and expedited discovery