In an attempt to avoid the negative consequences of the anti-SLAPP statute, Plaintiffs often attempt to move the Court to allow them to conduct costly and invasive discovery under Code of Civil Procedure 425.16, subdivision (g). Such requests are typically not supported by good cause and can be successfully opposed, as long as you are familiar with the usual arguments Plaintiffs put forward in support of their requests for discovery. What follows is a brief summary of the most common arguments you can employ to defeat these kinds of discovery requests.
1. Plaintiffs fail to identify precisely what evidence they need and why it could or would change the outcome of the anti-SLAPP motion.
Numerous cases construing the “good cause” requirement have held that a plaintiff 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.”) (Bold in original); Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226, 247 (denial of discovery proper when plaintiff did not explain what additional facts he expected to uncover, or why it was necessary to carry his burden); 1-800 Contacts, 107 Cal.App.4th at 593 (not an abuse of discretion to deny discovery requested without an adequate explanation of why the discovery is needed and what additional facts the moving party expects to uncover).
Plaintiffs often fail to produce any evidence to support their contention that information actually exists in support of any of the elements of their claims. Further, Plaintiffs routinely fail to show how the supposed additional information would or could have an outcome on the anti-SLAPP motion. Instead, Plaintiffs typically make generic references like “in order to prepare a proper opposition to the anti-SLAPP motion, discovery on the following issues is essential.” Depending on whether you are in state or federal court, that is typically not enough. Plaintiffs must make a particularized showing for each category of information they request.
2. Plaintiffs attempt to obtain discovery to “test” Defendant’s evidence.
“Discovery may not be obtained merely to ‘test’ the opponent’s declarations.” 1-800 Contacts, 107 Cal.App.4th at 593, citing Sipple, 71 Cal.App.4th 247. However, that is exactly what Plaintiffs commonly attempt to do. They often say something like: “in order to prepare a proper opposition to the Defendant’s Anti-SLAPP motion, discovery on the following issues is essential.” But this is usually a poorly disguised attempt to obtain information that might undermine a defendant’s sworn statements. That is not permitted and, assuming a court applies the law correctly, it will be rejected.
3. Plaintiffs fail to show any investigative efforts to obtain the claimed necessary information
In cases where the information is necessary to establish one or more elements of a plaintiff’s claim and the defendant is the only means of obtaining that information, a court will likely grant the request for discovery on a limited basis. However, in many other situations, Plaintiffs must show that the information they seek is not available elsewhere or through informal means. Paterno, 163 Cal.App.4th at 1351, fn. 4 (plaintiff’s failure to document attempts to contact witnesses or otherwise conduct any investigation required denial of motion for discovery). If they fail to do so, a court may deny a request for discovery.
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