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Tendler v. Doe

A New York rabbi who was expelled from the rabbinical association and fired by his congregation sought prelitigation discovery to identify bloggers who commented on the controversy. He obtained subpoenas in California requiring Google to provide information about the bloggers, and the bloggers moved to quash and filed a special motion to strike under the California anti-SLAPP law. Although the rabbi then dropped the subpoenas, the bloggers obtained an award of attorney fees under the anti-SLAPP law. On appeal from the order awarding fees, the California Court of Appeal held that California’s anti-SLAPP statute does not apply to subpoena proceedings in support of litigation being maintained in another state. (California has since adopted a statute providing for awards of attorney fees when a litigant in a different state obtains a California subpoena to identify an anonymous speaker and the subpoena is quashed.)

In February 2011, in the course of litigating over the damages payable by the synagogue that fired him, Tendler again obtained a subpoena seeking information about the bloggers. Representing the bloggers, Public Citizen again moved to quash the subpoena, arguing that the statute of limitations for a libel suit was long past and that the identities of Tendler’s critics was irrelevant to the amount of damages to which he might be entitled for his discharge. The court quashed the subpoena because the amount of damages for breach of Tendler’s employment contract is not a “core issue” sufficient to overcome the First Amendment right of a potential witness who is not himself a defendant in the litigation to remain anonymous.