WASHINGTON (Legal Newsline) - A District of Columbia-based organization recently filed an anti-SLAPP motion in D.C. Superior Court after objecting to a subpoena that originated in the United States Virgin Islands by its attorney general Claude E. Walker. 

Acting under the Uniform Interstate Depositions and Discovery Act (UIDDA), Walker requested the D.C. Superior Court domesticate and issue a subpoena to the Competitive Enterprise Institute (CEI), a nonprofit public policy organization in DC. 

"The Virgin Islands’ Attorney General wanted CEI to produce documents in aid of an investigation pending in the Virgin Islands," Leslie Paul Machado, an attorney with the LeClairRyan law firm, told Legal Newsline.

"Because CEI is based in the District of Columbia, however, only a D.C. court can compel CEI to produce documents. Under UIDDA, a party in a case pending in another jurisdiction (here, the Virgin Islands) can request a local court (here, the DC Superior Court) to issue a subpoena on a local “resident” (here, CEI) by filing the foreign subpoena with the local court."

After CEI objected to the subpoena and stated its intention to file an anti-SLAPP motion, the subpoena was revoked, but CEI was told it could be reissued in the future. 

CEI feels the threat of subpoena is a Strategic Lawsuit Against Public Participation suit, or SLAPP, aimed at abridging its freedom of speech.

"According to CEI’s brief, CEI believes the subpoena is an attempt to punish, or silence, CEI for its participation in the debate over climate change," Machado said.

The subpoena CEI received demanded that the organization produce internal and external communications regarding climate change and its relationship with ExxonMobil. While CEI may see the subpoena as a violation of its rights protected under the First Amendment to the United States Constitution, Walker has maintained that CEI might have documents relating to a current affair he is reviewing.

"CEI is likely using the Anti-SLAPP Act for two reasons," Machado told Legal Newsline. "First, CEI has argued that the subpoena is an attempt to stifle its speech, while the Virgin Islands’ Attorney General has maintained that he is simply investigating whether ExxonMobil misrepresented its knowledge of climate change, and believes that CEI might have relevant documents. CEI’s invocation of the Anti-SLAPP Act supports its narrative that this is about speech.

"Second, under the Anti-SLAPP Act, if the Court grants CEI’s motion, CEI is entitled to recover its attorney’s fees and costs (which would not ordinarily be available if CEI had simply moved to quash the subpoena)."

In 2011, the District of Columbia enacted the D.C. Anti-SLAPP Act, which provides the target of a SLAPP “with substantive rights to expeditiously and economically dispense of litigation aimed at preventing their engaging in constitutionally protected actions on matters of public interest.”

"Essentially, the statute allows parties to dispense of litigation that is aimed at stifling speech on matters of public interest at an early juncture, without time-consuming and expensive litigation," Machado explained. 

"Under the statute, a party can file a 'special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.' If the party shows that the claim arises out of 'an act in furtherance of the right of advocacy on issues of public interest,' the court must dismiss the case with prejudice, unless the other side can show that it is 'likely to succeed on the merits.'”

According to Machado, in April 2014, a D.C.-based organization and a D.C.-based individual separately received subpoenas, seeking information allegedly relevant to a defamation suit then pending in Idaho.

"The subpoenas were domesticated by the D.C. Superior Court under UIDDA – same as the subpoena here," Machado said. "The subpoena recipients filed motions to dismiss under the D.C. Anti-SLAPP statute. The Superior Court held, however, that a domesticated subpoena was not a 'claim' that allowed the recipient to file an anti-SLAPP motion to dismiss.

" In other words, the D.C. Superior Court held that the subpoena recipients could not file anti-SLAPP motions to dismiss in response to a subpoena. That decision has been appealed to the D.C. Court of Appeals."

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