Request for subpoena to unmask anonymous defendants in prospective Internet defamation case did not set forth “cause of action” or initiate judicial proceedings.

Tendler v., No. H031130, 2008 WL 2352497 (Cal.App. 6th Dist. June 10, 2008)

Some people (anonymously) set up several blogs on Google’s Blogger, and posted some nasty things about Rabbi Tendler. Rabbi Tendler got an Ohio state court to issue subpoenas to Google, requiring Google to turn over the IP addresses used to create the offending blog posts. Google refused to comply with the Ohio subpoenas, so Rabbi Tendler requested a California court issue subpoenas (which Google would more likely respond to) based on the Ohio subpoenas.

The Electronic Frontier Foundation and Public Citizen stepped in on behalf of the anonymous bloggers (the “Does”) and moved to quash the subpoenas. The following week, the Does filed an anti-SLAPP motion under California Code of Civil Procedure section 425.16, seeking to “strike [the] proceeding” and recover attorney’s fees.

Section 425.16, the anti-SLAPP statute, provides, in relevant part that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” A prevailing defendant under this statute can recover his or her attorney’s fees.

The trial court granted the anti-SLAPP motion and awarded about $20,000 in attorney’s fees to the Does. Rabbi Tendler sought review with the California Court of Appeal. The appellate court reversed.

The court looked to the plain meaning of the statute, observing that section 425.16 requires that the cause of action to be stricken must be contained in a complaint, cross-complaint, petition or similar pleading initiating a judicial proceeding. The request for subpoena in this case was not any of those sorts of pleadings, and it did not initiate a judicial proceeding.

The Does looked for support from the decision of Krinsky v. Doe 6, 159 Cal.App.4th 1154 (2008). The court refused, however, to find Krinsky to be instructive. In that case, the court held that a motion to quash a subpoena to discover the identity of an anonymous defendant in an Internet defamation case should be granted unless the party seeking discovery makes a prima facie showing on at least one of his or her claims. The Does (or should we say their EFF and Public Citizen attorneys) argued that this means a request for subpoena is tantamount to a cause of action. But this court held otherwise. Krinsky sets the standard for a motion to quash, but does not set the requirements for the request itself.