New Civil Discovery Law Protects Online Speech

Internet defamation attorneys and bloggers listen up!  A new law will take effect in California on January 1, 2009, which allows online speakers to obtain attorney's fees if they successfully oppose a subpoena to obtain their personally identifying information in California involving out-of-state litigation.

AB2433 was signed into law by Governor Arnold Schwarzenegger on September 30, 2008.  It amends Civil Code of Procedure sections 1987.1 and 1987.2.

Section 1987.2 reads:

(b) If a motion is filed under Section 1987.1 for an order to quash or modify a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code, if the moving party prevails, and if the underlying action arises from the moving party's exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action, the court shall award the amount of the reasonable expenses incurred in making the motion, including reasonable attorney's fees."

Notice the attorney's fees clause is mandatory.  That means if the "moving party prevails" the court is required to award the moving party attorney's fees.  But what does the term "prevails" mean?  What if the moving party simply seeks a modification of the subpoena request?  Would that mean the moving party had prevailed?

This new law is also important because it addresses a loophole created in the Tendler decision, which held that subpoenas are not subject to an anti-SLAPP motion because they do not constitute a "cause of action."  This allowed litigants to file a claim (perhaps frivolous in some instances) out of state and request a subpoena in California with virtual impunity.  Not anymore.  AB2433 closes this loophole.

This law will affect the way internet defamation claims are litigated in California, nationwide, and perhaps even the world.  It's significance cannot be overstated.

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