Thursday, September 8, 2016

The Ground Rules on John Doe SLAPPs

John Doe 2 v. Superior Court, No. B269087 (D2d3 Aug. 2, 2016)
The anti-SLAPP statute provides for an automatic stay of discovery. See Code Civ. Proc. § 425.16(g). The court has discretion to permit limited discovery on showing of good cause, but orders doing so are few and far between. In particular, when a defamation case is met with an anti-SLAPP motion, prior cases have established that, before it can get relief from the discovery stay, plaintiff needs to make a prima facie showing that the statement was provably false, defamatory in meaning, and unprivileged.

Defendant Doe here used an anonymous Gmail account to send emails to a party with whom Plaintiff was enmeshed in a business dispute. Plaintiff sued anonymously, alleging that the Doe’s emails were defamatory. Plaintiff subpoenaed Doe’s account-holder information from Google. When Doe got notice of that, he appeared and filed an anti-SLAPP motion, which put the kybosh on any discovery. But Plaintiff moved to lift the stay under § 425.16(g) and the trial court agreed. But Doe took a writ, which the court here grants.

As noted, to get discovery over Doe’s identity, Plaintiff needed to affirmatively show that the statements were false, capable of defamatory meaning, and unprivileged. It didn’t meet that burden here. Nor did the court buy Plaintiff’s back-up argument—that it needed to discover who Defendant was to know if he might have been a party to an arbitration agreement. Whatever interest Plaintiff had in some theoretical right to compel arbitration didn’t overcome the protections that § 425.16(g) gives to the right to free and anonymous expression.

Writ granted.

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