Oregon’s Anti-SLAPP Statute: Discovery Should Be Allowed Before Ruling (5/5) - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

Oregon’s Anti-SLAPP Statute: Discovery Should Be Allowed Before Ruling (5/5)

Discovery should be conducted in a limited basis before a anti-SLAPP dismissal.

Upon the filing of a special motion to strike under ORS 31.150, “all discovery in the proceeding shall be stayed.” ORS 31.152(2). For good cause shown and upon motion, the court may order that specified discovery be conducted notwithstanding the stay imposed. Id. In Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal App 4th 855, 867-68 44 Cal Rptr 2d 46 (1995), the court said:

If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated. The trial court, therefore, must liberally exercise its discretion by authorizing reasonable and specified discovery timely petitioned for by a plaintiff in a case such as this, when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees. Furthermore, while the statute says the motion to strike “shall be noticed for hearing not more than 30 days after service” (§ 425.16, subd. (g)), nothing therein prevents the court from continuing the hearing to a later date so that the discovery it authorized can be completed where a reasonable exercise of judicial discretion dictates the necessity therefor.

A showing of “good cause” is a showing “that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.” 1-800 Contacts, Inc. v. Steinberg, 107 Cal App 4th 568, 593, 132 Cal Rptr 2d 789 (2003) (citing Lafayette, 37 Cal App 4th at 868).

The Lafayette court also noted that the discovery stay in California’s anti-SLAPP statute could adversely impact a party’s due process rights. Lafayette, 37 Cal App 4th at 867. The situation that the court contemplated was a libel case with a media defendant, where the only source of libel evidence would be in the hands of the media defendant. Id. In such a situation, the court said, plaintiff must be given an opportunity to conduct (or complete) significant and necessary discovery. Id. The court also explained that the statute did not violate due process so long as it was applied appropriately. Id.

In a recent Oregon case, Page v. Parsons, 249 Or App 445, 462 (2012), the court upheld the trial court’s decision to deny the plaintiff’s discovery request, and found that such a denial was not an abuse of discretion. In that case, the trial court considered the plaintiff’s discovery request, gave plaintiff an opportunity to provide a more specific discovery request, and only when plaintiff failed to follow the instructions of the court did the court deny plaintiff’s discovery request. Id. at 452, 455. As in Page, the trial court should have allowed plaintiff an opportunity to conduct discovery. If the trial court found plaintiff’s discovery request to be too expansive, the court should have placed a limit on the discovery plaintiff could seek and then should have given plaintiff an opportunity to conduct it. If the trial court found that allowing discovery would not serve the purposes of the statute, one purpose of which is quick resolution, the trial court could have quick-set an evidentiary hearing as requested by plaintiff within a short period of time.  Failing to allow discovery and/or an evidentiary hearing is violative of plaintiff’s due process rights, and an abuse of the trial court’s discretion.

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