Exception To The Discovery Stay Under the anti-SLAPP Statute

As I’ve mentioned in previous posts numerous times before, upon the filing of an anti-SLAPP motion, "all discovery proceedings" are stayed. However, there is an exception where the Plaintiff can show good cause:

(g) All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The
stay of discovery shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion and for
good cause shown, may order that specified discovery be conducted
notwithstanding this subdivision.

(Emphasis added).

Now whether "good cause" exists will depend upon the specific circumstances of the case. Some factors courts may consider are: (1) whether the discovery is necessary for the Plaintiff make out a claim; (2) whether the evidence is solely in the possession of the party opposing the requested discovery; and (3) whether the discovery requested is narrowly tailored, or amounts to a "fishing expedition."

Things to look out for and consider:

  • Plaintiffs should file an ex parte application for an order shortening time as soon as they get hit with an anti-SLAPP motion and determine that they need discovery. If you simply make an ex parte application seeking to lift the discovery ban under CCP 425.16(g), the court may deny your request because the statute requires a "noticed motion."
  • Plaintiffs should only ask for limited discovery, otherwise the court may be inclined to deny your request.
  • Defendants should consider stipulating to Plaintiff’s requested discovery when it makes sense. If you do not stipulate, make sure you are aware of all the cases that support your position. On the plaintiff’s side, I have won a number of ex parte applications to lift the discovery ban because I had a greater command of the law than opposing counsel. In at least one of those instances, had I been on the other side, I believe I could have changed the result by distinguishing a key case.


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