D.C. Court of Appeals Rules That Full Discovery Must Be Allowed in Anti-SLAPP Cases

A so-called “SLAPP” suit is a strategic lawsuit against public participation—a case brought by one side of a political or public policy debate aimed to punish or prevent the opposite side from expressing its views. Like most states, D.C. has an anti-SLAPP law that allows defendants to bring an early motion to dismiss a SLAPP suit. In most cases, a defendant who prevails on an anti-SLAPP motion can recover its attorney fees. Thus, anti-SLAPP laws provide a way for defendants to get out of lawsuits quickly and cheaply when they are targeted by unmeritorious claims intended to chill their speech or political rights.

Until recently, the D.C. Anti-SLAPP Act (the “Act”) limited the amount of discovery plaintiffs could take when trying to defeat an anti-SLAPP motion. But in Banks v. Hoffman, the D.C. Court of Appeals held that the discovery-limiting provision of the Act must be stricken because it conflicts with the Federal Rules of Civil Procedure. Now, plaintiffs in District of Columbia courts are entitled to full discovery before a court rules on an anti-SLAPP motion.

The Act works like this: A defendant may file a “special motion to dismiss” within 45 days after service of a complaint. The defendant has the initial burden to make a preliminary showing that the claim arises from an act taken in furtherance of the right of advocacy on issues of public interest. The burden then shifts to the plaintiff to show that the claim is likely to succeed on the merits. If the plaintiff does so, the motion is denied; if not, the motion is granted.

However, as soon as a special motion to dismiss is filed, discovery on plaintiff’s claims is paused. The court may permit “targeted” discovery, but only “when it appears likely” that limited discovery would allow the plaintiff to defeat the motion and would not be “unduly burdensome.” This means that plaintiffs have very little opportunity to collect from defendants the documents and information to support their claims before the court decides whether the entire lawsuit should be dismissed.

In Banks, the Court of Appeals ruled that the discovery-limiting provision in the D.C. Anti-SLAPP Act conflicts with the federal Home Rule Act, which restricts the ability of the D.C. Council to pass laws governing the organization and jurisdiction of the D.C. Courts. And Title 11 of the D.C. Code specifies that the “Superior Court shall conduct its business according to the Federal Rules of Civil Procedure.”

In an earlier case, the D.C. Court of Appeals previously held that the “likely to succeed on the merits” standard in the Act is “substantively the same” as the summary judgment standard under the Federal Rules of Civil Procedure. But, unlike a motion for summary judgment under the federal rules, a special motion to dismiss puts the burden on the plaintiff (i.e., the non-moving party) and requires the court to evaluate the sufficiency of the evidence before discovery is finished—or, in some cases, before discovery has even begun.

In Banks, the Court held that because the discovery-limiting provisions of the Act distinguish it from a motion for summary judgment under Rule 56 of the federal rules, the Act “runs up against” the limitations expressed in the D.C. Code. Banks also recognized its decision as consistent with the D.C. Circuit’s conclusion in Abbas v. Foreign Policy Group, LLC that a defendant can’t file an anti-SLAPP motion in D.C. federal court because it is inconsistent with federal procedures governing when a court must dismiss a case before trial.

The Court of Appeals did not overturn the Act entirely, however, finding that the discovery-limiting provision was severable. It did not strike overall burden-shifting framework or the attorneys-fees shifting provision.

The Banks decision should make it easier for plaintiffs in D.C. to defeat anti-SLAPP motions. For example, in defamation cases (which frequently prompt anti-SLAPP motions), courts cannot dismiss the case before plaintiffs are able to conduct fulsome discovery – including from third parties, when necessary – about what the defendants knew or should have known at the time they made the statements at-issue. Defamation plaintiffs may also seek discovery to establish that they are not “public figures” who are required to meet the higher standard of showing that defendants acted with actual malice. However, plaintiffs still may wish to file in federal court if jurisdiction exists (for example, diversity of citizenship or a federal cause of action), because there, defendants are precluded from bringing an anti-SLAPP motion at all.