Subpoenas and SLAPP Motions to Dismiss

JD Supra Business Advisor discusses CEI's fight against the subpoena they recieved from an attorney general as part of the campaign to silence the debate on climate change.

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.

Read the full article at JD Supra Business Advisor.