Metropolitan News-Enterprise


Tuesday, July 8, 2008


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Anti-SLAPP Law Not Applicable to Subpoena Request—C.A.




A request for a subpoena cannot be the subject of an anti-SLAPP motion, the Sixth District  Court of Appeal has ruled in an opinion certified yesterday for publication.

The June 10 ruling overturned an order that Mordecai Tendler, a New York rabbi, pay more than $20,000 in attorney fees and costs to the anonymous bloggers whom he accused of defaming him.

Tendler, a member of a family prominent in Orthodox Jewish circles, has been dogged in recent years by claims he harassed women within his congregation. He was forced from his suburban New York pulpit and expelled from his rabbinical association when the allegations became public more than three years ago.

The Sixth District ruling was one of two pieces of good legal news for Tendler last month. On June 25, New York state’s highest court upheld lower court rulings throwing out a sexual harassment suit by a woman who claims she had a five-year affair with the married father of eight.

The New York courts ruled that anything that transpired between the plaintiff and the rabbi was consensual, and that the suit amounted to an action for seduction, which is specifically precluded by New York law. The woman claimed that because of the rabbi’s special position within their insular community, she had no way to end the affair, even though it was harming her emotionally.

The California ruling stemmed from a lawsuit that the rabbi filed in Ohio, charging that he had been libeled by Doe defendants who had aired the allegations against him on websites such as,,, and 

As part of that suit, the rabbi—who was represented by counsel at the time, but wound up representing himself on appeal—subpoenaed Google, seeking to identify the Does. Google would not comply with Ohio subpoenas, so the rabbi requested that the Santa Clara Superior Court issue the subpoenas.

Motion to Quash

After apparently learning of the subpoenas from Google, the Does—represented by Cindy Cohn of the Electronic Frontier Foundation and Paul Alan Levy of Public Citizen Litigation Group—moved to quash the subpoenas and to strike the request under the anti-SLAPP statute, Code of Civil Procedure Sec. 425.16.

Tendler subsequently dismissed his subpoena request without prejudice, and neither he nor his attorneys appeared for the hearing before Santa Clara Superior Court Judge Neil Cabrinha. The judge granted the special motion to strike and ruled that the defendants were entitled to attorney fees and costs.

Several days later, Tendler filed a substitution of counsel, designating himself as the defendant in pro per. The Does then moved for an award of more than $40,000 in fees and more than $1,700 in costs.

Cabrinha awarded the defendants the requested costs and about half of the attorney fees they sought. Tendler appealed both the order granting the motion to strike and the order granting fees and costs.

‘Broadest Interpretation’

Justice Nathan Mihara, writing for the Court of Appeal, said that while the anti-SLAPP statute is construed broadly, “[e]ven the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena.”

The justice reasoned that the request does not fall under the statute because it “is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding.”

He distinguished Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, which held that a California subpoena seeking the identity of an anonymous blogger who had allegedly defamed the plaintiff, who filed suit in Florida, should have been quashed in the absence of a prima facie showing that the Florida suit had merit.

That case does not establish that a request for a subpoena directed at an anonymous blogger or poster’s identity is an action within the meaning of the anti-SLAPP law, Mihara said. The only way the case would have applied to Tendler, he elaborated, was if he had proceeded with his subpoena request, in which event he would have had to make a prima facie showing as to the merits of the Ohio suit in order to defeat the motion to quash.

Mihara acknowledged the defendants’ concern that allowing defamation plaintiffs to subpoena internet service providers and web hosts will lead to the kind of First Amendment chill that the anti-SLAPP statute is designed to prevent. But such concerns “may be overstated” and must in any event be directed to the Legislature, he wrote.

Justice Wendy Clark Duffy concurred in the opinion.

Justice Richard McAdams concurred separately, saying the panel had delivered “good news and bad news for those [anonymous Internet posters and bloggers] who engage in nontortious discourse.”

The good news, he explained, was the protection offered by Krinsky, while the bad news is “that it may cost you tens of thousands of dollars to preserve your anonymity.”

He “reluctantly” concurred in the majority’s conclusion. While not necessarily agreeing that a complaint, cross-complaint, or petition must be filed in order for the anti-SLAPP statute to apply, he explained, he did agree with the majority that a subpoena request is not covered because it does not contain causes of action.

He urged the Legislature to revisit the statute given the likelihood of an increasing number of such subpoena requests.

The case is Tendler v.  www.jewishsurvivors.blogspot. com, H031130.


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