Anti-SLAPP Statute Can’t Be Used Against Subpoena

Two years ago, I blogged about the anti-SLAPP special motion to dismiss filed by the Competitive Enterprise Institute in response to a non-party subpoena served by the Virgin Islands Attorney General. CEI maintained the subpoena, which sought documents relating to climate change and ExxonMobil, was aimed at silencing debate on a matter of public interest. So it filed an anti-SLAPP special motion to dismiss the subpoena.

The DC anti-SLAPP statute requires a party to first show the “claim” arises from an act in furtherance of the right of advocacy on issues of public interest. The statute defines “claim” as “any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” CEI argued the subpoena fell comfortably within this definition.

In my June 2016 blog post, I noted another Superior Court judge had already rejected the argument a subpoena was within the definition of “claim” for purposes of an anti-SLAPP special motion to dismiss. The VanderSloot court held that, if the DC Council wanted to include “subpoena” within the definition of “claim,” it knew how to do so (as evidenced by the fact it created a separate section of the statute dealing with subpoenas). The VanderSloot court also held a subpoena was different from the other categories of pleadings delineated in the statutory definition of “claim.”

In an opinion issued last Friday, the Virgin Islands court reached the same conclusion. Like the VanderSloot court, the Virgin Islands court concluded that, by addressing subpoenas in DC Code §16-5503 (the special motion to quash section), without including subpoenas in the definition of “claim,” the DC Council must not have intended “claim” to include subpoenas. Like the VanderSloot court, the Virgin Islands court held the first five examples of “claim” in the statutory definition (“any civil lawsuit, complaint, cause of action, cross-claim or counter-claim”) all differ from a subpoena because they involve a request for relief from the court, and not a request for information from a party or other person.

Next, the Virgin Islands court held the term “other judicial pleading” in the statutory definition of “claim” did not include subpoenas because Superior Court Rule 7(a) limits pleading to “complaints and answers, replies to counterclaims, answers to cross-claims, and third party complaints and answers.” Finally, like the VanderSloot court, the Virgin Islands court held that, because subpoenas are not a “judicial” filing or a “filing requesting relief,” as those terms are commonly used in judicial proceedings, the subpoena did not qualify under the catch-all provision of the “claim” definition. The court thus denied CEI’s motion to dismiss. It also denied CEI’s motion for fees under the anti-SLAPP statute, holding that, because the statute did not apply to the subpoena, CEI was not a prevailing party.

The DC anti-SLAPP statute allows the court to award fees and costs to the non-moving party if the motion “is frivolous or is solely intended to cause unnecessary delay.” The Virgin Islands Attorney General argued that standard was satisfied here because it had already agreed to withdraw the subpoena before CEI filed its anti-SLAPP special motion to dismiss. The court accepted CEI’s argument that the threat of future litigation (if the Virgin Islands re-served the subpoena) did not render the motion moot/frivolous, so it denied the Virgin Islands’ request for fees.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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