If an individual or entity believes a subpoena is aimed at silencing debate on a matter of public interest, can it invoke the DC anti-SLAPP statute in response? That is the question presented by a recent anti-SLAPP motion filed by the Competitive Enterprise Institute in DC Superior Court.

According to the CEI brief, in mid-March, it received a non-party subpoena demanding that CEI produce internal and external communications regarding climate change and its relationship with ExxonMobil. CEI maintains the subpoena is part of a campaign by various states attorneys general to investigate those who “oppos[e] the coalition’s preferred policy responses to climate change.”

CEI explains that the subpoena was issued by the DC Superior Court, which domesticated a subpoena issued by the Virgin Islands’ Attorney General. According to CEI, after it objected to the subpoena and stated its intent to file an anti-SLAPP motion, it was informed that the subpoena was being revoked, but that it could be reissued in the future. CEI’s brief states that, because of the ongoing threat of a subpoena, which it believes is an attempt to silence public debate, CEI was filing the anti-SLAPP motion.

The interesting question is whether CEI, as a non-party subpoena recipient, can utilize the motion to dismiss provision in the DC anti-SLAPP statute. To do so, CEI must first show that the “claim” arises “from an act in furtherance of the right of advocacy on issues of public interest.” CEI argues that the domesticated subpoena qualifies as a “claim” subject to the Act:

Consistent with the Act’s purpose of protecting citizens from abuse of legal process and associated burdens, the Act defines “claim” as broadly as possible to “include[] any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” D.C. Code § 16-5501(2). Attorney General Walker commenced this action and obtained the subpoena pursuant to the Uniform Interstate Depositions and Discovery Act, D.C. Code §§ 13-441 et seq. (“UIDDA”), which establishes a procedure for a party to “request issuance of a subpoena” by the Court through a filing with the Court. D.C. Code § 13-443(a). Because Attorney General Walker’s filing pursuant to the UIDDA was a “filing requesting relief” from the Court – that the Court issue a subpoena imbued with its authority – it constitutes a “claim” subject to the Anti-SLAPP Act.

The problem for CEI is that a DC Superior Court judge has already rejected a similar argument. In April 2014, two non-parties received domesticated subpoenas, seeking production of records and a deposition in aid of a defamation suit, brought by Frank VanderSloot and then pending in Idaho. The subpoena recipients filed anti-SLAPP motions, seeking relief under the statute’s motion to dismiss provision. Like CEI, they argued that the domestication of the foreign subpoena qualified as a claim:

The Act provides an extremely broad definition of the term claim. It “includes any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” D.C. Code Ann § 16-5501(C). The petition that plaintiffs filed with this court on June 16, 2014 seeking issuance of the subpoena is a “filing requesting relief” that falls squarely within the definition of “claim” in the Anti-SLAPP Act. It has been assigned its own civil action number (14-CA-3684) and the clerk signed the subpoena, issuing the relief that was requested.

The Superior Court disagreed, holding that the domesticated subpoena did not qualify as a “claim” under the statute. It noted that, in the motion to quash section of the statute (which provides a means to quash a subpoena seeking the identity of an anonymous speaker (and was front and center in the Doe v. Burke case)), the DC Council specifically included “subpoena.” This omission from the motion to dismiss section of the statute, the Superior Court held, was telling:

[I]t is apparent that the Council knew how to specify whether the Act applies to subpoenas, because it explicitly authorized special motions to quash subpoenas for personal identifying information in Section 5503. The fact that the Council specifically delineated that Section 5503 applies to subpoenas, and did not do so in Section 5502, directly undercuts the argument that Section 5502 applies to subpoenas as well.

Turning back to the definition of “claim” in the statute, the VanderSloot court held that it did not encompass a subpoena:

[T]he first five examples of a “claim” in Section 5501 involve requests for relief that are quite different from a subpoena. In fact, each of the examples — “any civil lawsuit, complaint, cause of action, cross-claim, or counterclaim” — involves a request for relief from the Court, not a request for information from a party or other person. . . . Finally, the term “other judicial . . . filing requesting relief” also does not apply to subpoenas. Indeed, subpoenas are not a “judicial” filing, but merely a request to the Clerk’s Office, which “shall issue a subpoena, signed but otherwise in blank, to a party requesting it,” Super. Ct. R. Civ. P. 45(a)(3), without any involvement from a judicial officer.

A few years ago, a California state appellate court reached the same conclusion under that state’s anti-SLAPP statute. In Tendler v. www.jewishsurvivors.blogspot.com, the plaintiff domesticated an Ohio subpoena in California, seeking the identity of anonymous commentators who allegedly defamed him. Three of the commentators moved, anonymously, to strike the subpoenas under California’s anti-SLAPP statute. Although the plaintiff then withdrew his subpoena, the trial court nevertheless awarded the defendants their attorneys’ fees.

The intermediate appellate court reversed, holding that, while California’s statute allowed an anti-SLAPP motion to be brought in response to “a cause of action,” a domesticated subpoena did not qualify as a “cause of action”:

a request for a subpoena, unlike a complaint, cross-complaint, or petition, does not contain any “cause of action.” An “action” is a proceeding “one party prosecutes against another for a declaration, enforcement, or protection of a right, or the redress or prevention of a wrong. A request for a subpoena does not seek to “prosecute another for the declaration, enforcement, or protection of a right” and does not seek “redress or prevention of a wrong.” A request for a subpoena merely seeks to compel the disclosure of information potentially relevant to a “cause of action.”

The defendants in Tendler argued, as CEI argues here, that the filing of the domesticated subpoena in the local court triggered the statute. The Tendler court disagreed: “Tendler never filed a complaint, petition, or other similar pleading that would be sufficient to initiate a lawsuit in California. His sole filing in California was a ‘civil case cover sheet’ that was accompanied by an affidavit of his attorney and a ‘request’ that the court ‘issue a case number and endorse’ the four subpoenas. A civil case cover sheet does not on its own initiate a lawsuit, nor does an affidavit and request for endorsement of subpoenas.” These decisions suggest that CEI will have an uphill battle in prevailing on its anti-SLAPP motion.

Two final thoughts: the DC Superior Court in VanderSloot held that, while the subpoena was not a “claim” under the DC anti-SLAPP statute, the plaintiffs’ motion to compel compliance with the subpoena qualified as a “claim.” In the CEI dispute, however, the Virgin Islands’ Attorney General has apparently not moved to compel compliance with the subpoena, foreclosing that argument. Finally, the movants in VanderSloot appealed the Superior Court’s denial of their anti-SLAPP motions to the DC Court of Appeals, where it has been pending for 18 months (behind the Mann case (which also involves CEI)). That logjam will be the subject of an upcoming post.

Update: At the request of the Virgin Islands’ Attorney General, the Superior Court has issued an Order terminating the action and revoking the CEI subpoena. CEI has indicated that it still intends to pursue sanctions.