OK - now hearing in Coe v. Todd Blanche on a Temporary Restraining Order and provisional class certification of families of transgender youth seeking to block turn over of health info to DOJ/subpoena to NYU Langone. Inner City Press will live tweet, thread below
Judge Failla: This case was reassigned to me 25 and a half hours ago. Before Judge Vargas, I hear the production of documents was extended. How about tomorrow by noon - acceptable?
Nixon Peabody: No objection from NYU.
Judge: How do I say Stangio?
Just so
Judge Failla: Would I have to find bad faith in the Executive Orders, or the transition to grand jury subpoenas?
Chase Strangio of ACLU: No. The Court has jurisdiction, under the Dow Jones factors. Care was here, the information is here.
Gonzalez-Pagan of Lambda: There is bad faith, but we can prevail without that finding. The Government has not shown why it needs this information. Plaintiffs' transgender status triggers private rights.
Judge Failla: Rule 6(e) is about grand jury secrecy
Gonzalez-Pagan: There is also a subpoena to Rhode Island. They are purportedly investigating health care offenses-
Judge Failla: How do I know that? Given grand jury secrecy?
Gonzalez-Pagan: We have the Bondi memo, about aiming to end gender-affirming care
Gonzalez-Pagan: The 2d Circuit had held transgender status is incredibly private. This seeks info beyond gender dysphoria.
Judge Failla: The Government says this should be in the Northern District of Texas. How can I introject myself into their criminal case?
Gonzalez-Pagan: This is the weaponization of the grand jury, as to the subpoena to NYU. We are trying to protect the private information of our plaintiffs. At the Children's Hospital of Los Angeles, they withdraw part of their request
Judge Failla: The Government's response is, Your clients could go to Texas and challenge this.
Gonzalez-Pagan: We are seeking something broader, to protect our client's information and rights. We cannot look at the subpoena in a vacuum. Mt. Sinai has a subpoena
Judge Failla: What about anonymized information?
Gonzalez-Pagan: That wasn't offered. Anyway the information is granular and cannot be anonymized. There is no reason for the Government to be compiling a list of transgender people
Gonzalez-Pagan: The Texas Attorney General has said that this care is child abuse.
Judge Failla: I'm not an activist judge. I take seriously the lanes in which I can operate. So again, why isn't this in Texas? I want to understand. Is this forum shopping?
Chase Strangio: They want to force us into wackamole, looking for grand juries all over the country.
Judge Failla: How could I certify with other health institutions if we don't know if they have gotten a subpoena? Maybe Mt Sinai.
Strangio: Carl Coe went to both
Gonzalez-Pagan: It is clear that the Constitution can constrain the grand jury. Perhaps the informational right hasn't been directly applied. But there is this case. The Government suggests they can seek any info through the grand jury
Judge: Break
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Back.
AUSA: The Federal Rules of Criminal Procedure says the challenge to a subpoena should be where it was issued - they say, Northern District of Texas.
Judge Failla: But we have the Gonzalez decision here in the 2d Circuit. I don't know other Circuits as well
Judge Failla: The subpoena was on a website
AUSA: But they're seeking preliminary injunctive relief. In Gonzalez they sought only a declaratory judgment.
Judge Failla: The subpoenas aren't going to the patients
AUSA: Grand jury secrecy exists for a reason
Judge Failla: How do I balance if I don't know what subpoenas there are?
AUSA: That's a question for Judge O'Connor in the North District of Texas. Allegedly.
Judge Failla: An alleged subpoena in an alleged District. Can you say patients wouldn't be prosecuted?
AUSA: Let me confer with my co-counsel.... Patients will not be prosecuted. In this context, we view them a victims.
Judge Failla: Do you acknowledge they have an expectation of privacy in their information?
AUSA: Broadly...
Judge Failla: Aren't you working with a de-transitioning group in Texas?
AUSA: Yes.
Judge Failla: So the plaintiffs may be concerned they would be forced into that. Take a moment while I consider what to ask NYU
[some laughter in the courtroom]
Judge Failla: OK, Mr. Cunha [RI-based lawyer for NYU], your client has been caught between two poles. But if you have a view on these issues, I'd love to hear from you
Cunha: We are betwixt and between. To this date we have not produce any patient information
Cunha: I cannot say we could ensure anonymization, in this era of artificial intelligence.
Judge Failla: If I agree with the Government, are you ready to produce information tomorrow?
Cuhna for NYU: Some.
Judge: 11 am oral decision
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