Code of Civil Procedure Section 425.16, subdivision (g) states that “[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of [an anti-SLAPP] motion” and the stay “shall remain in effect until notice of entry of the order ruling on the motion[,] or in the event a party files a noticed motion seeking additional discovery and establishes good cause for it. Numerous cases construing the “good cause” requirement have held that the party seeking discovery must explain precisely “what discovery he proposes and why it is necessary.” Rogers v. Home Shopping Network (C.D. Cal. 1999) 57 F.Supp.2d 973, 977 (“A plaintiff who desires to conduct further discovery after the defendant files a special motion must file a noticed motion . . . which the court will grant only for good cause shown and only for specified discovery. These requirements have been strictly applied by California Courts.”).
In early April 2020, in Planet Aid Inc. v. Reveal, Center for Investigative Reporting (2020 WL 1701960), the U.S. District Court in Northern California issued an order addressing various discovery issues surrounding an anti-SLAPP motion, and specified what kind of discovery may be requested and in what manner. The Plaintiff, Planet Aid, Inc., was a not-for-profit foreign aid organization, which worked with various countries to assist in finding environmentally beneficial ways to use second-hand clothing. Planet Aid also received millions of dollars of grant funding through programs run by the US Department of Agriculture. Defendant Reveal was a news reporting agency, which aired on NPR stations around the country, and based their material on “investigative journalism and groundbreaking story telling.”
Co-defendants Matt Smith and Amy Walters, both reporters for Reveal, worked on a Reveal podcast episode, which aired in March 2016 titled “Alleged Cult Leader Plays Shell Game with US Foreign Aid.” The podcast episode focused on Planet Aid’s international operations as well as FBI reports that linked Planet Aid’s financial ties to a Danish money laundering organization called the “Teachers Group.” In August 2016, Planet Aid filed a complaint against Defendants for various claims including civil conspiracy, defamation, and false light, alleging that Reveal’s reporting harmed Planet Aid’s reputation and business relationships by accusing Planet Aid of engaging in criminal conduct.
In advance of a November 2019 hearing, wherein the parties were to meet and confer in person regarding all pending discovery disputes, the court ordered the Plaintiff to identify, with specificity, what additional discovery was needed to respond to Defendant’s Anti-SLAPP motion. Plaintiff was also required to list the reasons for the additional requested discovery. Plaintiff told Reveal what additional discovery they believed they needed. The Court’s effort to bring the anti-SLAPP discovery to a close was unsuccessful, however. After the November 2019 hearing, both parties filed numerous joint discovery dispute letters.
In an effort to address the outstanding discovery disputes, the court issued an order to close the book on the anti-SLAPP motion and move the case along.
First, the court denied Plaintiff’s request for additional production pertaining to 15 key sources, noting that the issue was not what discovery Plaintiff is entitled to in the case, but rather what additional discovery was necessary to their opposition to the anti-SLAPP motion. For many reasons, Plaintiff failed to show the necessary connection, and the court that the Plaintiff must wait until later to pursue the discovery, if the case survived the motion.
To begin, Plaintiff did not raise the issue at the November hearing and did not persuasively explain why the discovery was essential to their opposition, despite the court’s direct instruction to do so. The court found Plaintiff’s contention weak in light of the email correspondences between the parties in 2019. In that correspondence, Defendants asked Plaintiff twice which source they deemed to be their priority. If none, they suggested that the Plaintiff continue with the list of 15 sources requested by the Plaintiff in 2018. In response, Plaintiff asked for a different source (not one of the 15) and additional documents also unrelated to the list of 15 sources. Plaintiff did not request any information related to the additional source in their correspondence with the Defendants. Moreover, one month before the November hearing, Defendants asked Plaintiff, “What documents, if any, are essential for Plaintiff in order to respond to our anti-SLAPP?” Plaintiff failed again to request the source cited in their dispute letter. Clearly, the court found, they should have done so if that source was important to their opposition.
The court also rejected Plaintiff’ discovery dispute pertaining to information given in a deposition of one of Defendant’s reporters and co-defendant, Matt Smith. Plaintiff maintained that at the deposition, Smith was asked to identify information pertaining to Planet Aid’s files, which Smith obtained through an unidentified source. Plaintiff asserted that when deposed, Smith refused to identify documents, files, and the source of the information. However, Plaintiff failed to cite to the deposition transcript to support Smith’s alleged refusal.
Upon its own review of the transcript, the court found that Plaintiff never asked Smith to identify any reviewed documents, or what files Smith had obtained. Thus, it was impossible to refuse to answer questions that were not asked. Plaintiff did ask Smith if the information came from a laptop or hard drive, but Smith responded that he did not know. Again, Plaintiff’s discovery dispute was flawed and thus denied.
The Order’s last discovery dispute discussion dealt with Plaintiff’s request for documents, which were potentially relevant to their claim of malice. The documents, mostly correspondence between Defendants and other reporters, allegedly encouraged the public to stop supporting Planet Aid’s operations involving recycled clothing. Defendants, in compliance with a prior court order, advised Plaintiff of the number of documents and names of the authors, but stood on their privilege objection and refused to produce them. Here, the court noted that the issue was not admissibility, but rather what could be discovered. Defendants’ privilege objection, however, was unpersuasive because the court determined that the reporter’s privilege applied only to information gathered in the course of their work. But Plaintiff sought communications about Defendants’ efforts to discourage the public to donate to Planet Aid, which was not related to the information gathering process. Additionally, Defendants failed to cite supporting their contention that the communications were privileged. So the court ordered Defendants to produce the requested communications, but noted that anything related to the information-gathering process may be redacted, as it is not relevant to Plaintiff’ need for the information. Both Plaintiff and Defendants made mistakes during the anti-SLAPP discovery process. If discovery is material to a party’s opposition, it must be specifically related to the anti-SLAPP motion, and persuasive reasons for the discovery must be given. The purpose of a discovery stay once an anti-SLAPP motion is filed would be frustrated if these criteria are not met.
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