SDNY COURTHOUSE, June 24 – There
was a 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 live tweeted it and the June 24
decision granting the TRO and provisionally certifying the
case on X. First June 23:
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
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
More / analysis on X for Subscribers here
and Substack here
On June 24: "Judge Failla: The records sought
are unusually detailed, beyond gender dysphoria. In the
first few days of the current Administration, there was an
attempt to demonize and eliminate a whole group of
transgender people
Judge Failla: Yesterday many in the courtroom
gallery laughed when AUSA Miller said "allegedly." But I
take seriously any government attorney's sensitivity to
the secrecy of grand jury proceedings.
Judge Failla: I am provisionally certifying a
class and granting plaintiff's request for a TRO against
DOJ requesting information about the class members.
[That's the holding]
The case is Coe, et al. v. Blanche, et al.,
1:26-cv-4641 (Failla)
