MMM Holdings v. Reich, No. G053739 (D4d3 Mar. 12, 2018)
Q: What almost always happens when you sue someone for something they did in another litigation?
A: You lose an anti-SLAPP motion.
Relator in a federal False Claims Act claim provided his attorney with some documents he had (allegedly) purloined from his former Employer, for use in a qui tam action. The attorney allegedly used the documents in the qui tam and also gave them to other lawyers litigating against the company on similar issues. Instead of seeking a remedy for that in the federal court where the qui tam is being litigated, Employer sued Relator’s attorneys in state court in California.
That was a bad idea. Because pretty much anything an attorney does in connection with legitimately litigating a case is “protected activity” under the anti-SLAPP statute. Except when tactics include obviously criminal stuff like bribery and wiretapping—which complicates the analysis—evidence gathering for litigation is “other conduct in furtherance” defined as protected activity under Code of Civil Procedure § 425.16(e)(4). That provision does, however, required the conduct to be “in connection with a public issue or an issue of public interest.” But since the subject of the qui tam was Employer’s alleged bilking of the government on some Medicare billing, the conduct was sufficiently related to an issue of public interest to meet the test.
And then turning to the merits, as is typical in these kinds of cases, the Civil Code § 47(b) litigation privilege precluded any chance of success. While the privilege is limited to communicative acts, a client’s transmittal of evidence to his attorney, and the attorney’s subsequent use of that evidence in a litigation are sufficiently communicative that the privilege applies.
Affirmed.
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