Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. 

Case

In re SSCP Mgmt., Inc. 02-19-00098-CV, (Tex. App. – Fort Worth April 22, 2019) (no pet. h.). The appeals court ruled that the trial court had abused its discretion and conditionally granted the mandamus. (However, the appeals court denied the writ of mandamus on March 1, 2019 when it came to their attention that “Respondent has entered an amended order; thus, the order that is at the crux of the petition for writ of mandamus is no longer at issue.”

How Much Discovery Is Too Much Discovery In A Texas anti-SLAPP Case

Sutherland/Palumbo, LLC filed suit against SSCP Mgmt., Inc. and other defendants. They then filed an amended petition along with a request for comprehensive discovery. The defendants filed a motion to dismiss under the Texas anti-SLAPP statute, TCPA.

When the Texas anti-SLAPP motion to dismiss was filed, the nonmovant filed a “motion to conduct discovery.” The trial judge allowed the “comprehensive discovery.” The defendants filed a writ of mandamus in the Court of Appeals complaining about the comprehensive discovery.

The Court of Appeals first held that the plaintiff had shown “good cause” for discovery but that the proposed discovery was not “specified and limited.” The plaintiff essentially talked the trial court into allowing the comprehensive discovery that plaintiff had filed before the motion to dismiss to proceed. The appeals court ruled that the trial court had abused its discretion.

The discovery approved by the trial court included:

• Plaintiff’s First Set of Interrogatories to Defendant SRS National, containing 13 interrogatories, some of which included multiple subparts;
• Plaintiff’s First Set of Interrogatories to Defendant SSCP, containing 23 interrogatories, some of which included multiple subparts;
• Plaintiff’s First Request for Production to Defendants SSCP, SDharod, Apple Texas, and Texas Apple, which included 110 requests for production;
• and Plaintiff’s First Request for Production to SRS Defendants, which included 87 requests for production to SRS Real Estate and SRS National.
• (The Production request included such things as the Defendants tax returns.)

On this record, we conclude the trial court abused its discretion by issuing the Discovery Order and by granting the excessive discovery requested by Sutherland. We also conclude that Defendants have no adequate remedy on appeal. We conditionally grant the writ in part and direct the trial court to vacate the Discovery Order as soon as possible and, after a hearing, to issue a new order limiting discovery as required by the TCPA. 

A footnote by the court about the difficulty of discovery in the Texas anti-SLAPP law is instructive:

Recently, this court observed that the TCPA’s mandatory stay of discovery once a motion to dismiss has been filed

“becomes problematic in circumstances where a movant’s entitlement to bring a motion to dismiss under section 27.002 is dubious, i.e., when the plaintiff’s legal action is arguably not based on, related to, or in response to movant’s right of free speech, right to petition, or right of association. When a movant is not entitled to file a TCPA motion to dismiss but nevertheless files one, the respondent has no statutory mechanism to challenge the filing at the outset. Instead, under the statutory scheme, the respondent must wait until specified and limited discovery, if any, is completed and challenge the motion at the time the hearing on the motion occurs.

The problem this creates is exacerbated in complex cases involving numerous legal actions where the movant uses a shotgun approach, taking aim at all of the legal actions, not just the actions that are actually based on free speech, petition, or association rights. In such cases, prior to receiving a threshold determination of whether the movant was entitled to bring the motion to dismiss as to certain claims in the first place, the plaintiff must nevertheless be armed with “clear and specific” evidence of each essential element of every single claim challenged. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Thus, under these circumstances, discovery must be sufficiently broad to cover all essential elements of all of the challenged claims, even if it could be later determined that some of the claims did not fall within the TCPA.”

The court was quoting In re IntelliCentrics, Inc., No. 02-18-00280-CV, 2018 WL 5289379, at *2 (Tex. App.—Fort Worth Oct. 25, 2018, orig. proceeding) (mem. op.).