COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 43

REPLY to opposition to motion re 21 MOTION to Dismiss under the D.C. Anti-SLAPP Act filed by DONALD J. TRUMP FOR PRESIDENT, INC.. (Carvin, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT,
INC. ET AL .,
Defendants.

REPLY IN SUPPORT OF
DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
SPECIAL MOTION UNDER THE D.C. ANTI-SLAPP ACT
TO DISMISS THE FIRST AMENDED COMPLAINT

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Michael A. Carvin
Counsel of Record
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

TABLE OF CONTENTS
Page
Table of Authorities ...................................................................................................... ii
Argument ...................................................................................................................... 1
A. The District of Columbia Anti-SLAPP Act applies in federal court ............... 1
B. The Anti-SLAPP Act applies to this case ........................................................ 2
C. The Anti-SLAPP Act does not entitle Plaintiffs to take discovery ................. 4
Conclusion ..................................................................................................................... 6
Certificate of Service

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TABLE OF AUTHORITIES
Page(s)
CASES
Abbas v. Foreign Policy Group, LLC,
783 F.3d 1328 (D.C. Cir. 2015) ................................................................................. 1
Competitive Enterprise Institute v. Mann,
150 A.3d 1213 (D.C. 2016) .................................................................................... 1, 4
Deripaska v. Associated Press,
No. 17-913 (Oct. 17, 2017) ........................................................................................ 1
Viles v. Ball,
872 F.2d 491 (D.C. Cir. 1989) ................................................................................... 4
STATUTES
D.C. Code § 16-5501 ................................................................................................... 2, 3
D.C. Code § 16-5502 ................................................................................................... 2, 4
OTHER AUTHORITIES
Fed. R. Civ. P. 26 ............................................................................................................ 4

ii

ARGUMENT
In their opposition to the Campaign’s special motion to dismiss under the District
of Columbia’s Anti-SLAAP Act, Plaintiffs assert that the Act does not apply in federal
court (and in any event does not cover this case). As we noted in our opening brief, we
recognize that this Court did not apply the Act in Deripaska v. Associated Press, No.
17-913 (Oct. 17, 2017); we have presented the anti-SLAPP motion primarily to preserve the defense. We briefly address Plaintiffs’ arguments below.
A. The District of Columbia Anti-SLAPP Act applies in federal court
Plaintiffs invoke the D.C. Circuit’s decision in Abbas v. Foreign Policy Group, LLC,
783 F.3d 1328 (D.C. Cir. 2015), refusing to apply the D.C. Anti-SLAPP Act in federal
court. Plaintiffs never deny, however, that the D.C. Circuit addressed a particular
interpretation of the Act that the D.C. Court of Appeals later rejected in Competitive
Enterprise Institute v. Mann, 150 A.3d 1213, 1238 n.32 (D.C. 2016). Plaintiffs instead
assert that “the applicability of the Anti-SLAPP statute in federal court” is for federal
courts, not D.C. courts, to determine. (Opp. 5.) That is true, but beside the point. The
D.C. Court of Appeals may not be final authority on whether the Anti-SLAPP Act
applies in federal court, but it is the final authority on what the Act means in the first
place. And that court has now held that the Anti-SLAPP Act does not mean what the
D.C. Circuit thought it meant in Abbas. As a result, no binding precedent addresses
whether the D.C. Anti-SLAPP Act, as currently interpreted, applies in federal court.
For the reasons explained in our opening brief, the Act does apply.

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B. The Anti-SLAPP Act applies to this case
The D.C. Anti-SLAPP Act applies to any claim that “arises from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(b). The
publication of the DNC emails was an act in furtherance of the right of advocacy on
issues of public interest. Therefore, the D.C. Anti-SLAPP Act covers this case.
Plaintiffs’ assertions to the contrary are unpersuasive. Plaintiffs implicitly concede
that the disclosure, taken as a whole, addresses “issues of public interest”: The emails
discuss “public figures” (such as Secretary Clinton and Senator Sanders), in addition
to numerous issues of “economic” and “community” well-being. D.C. Code § 16-5501(3).
Plaintiffs can claim only that snippets of information in particular emails “about individuals’ sexuality, health, personal information, and social security numbers” do not
fit the Act’s definition of “public interest.” (Opp. 8.) In other words, Plaintiffs want
courts to sift through defendants’ speech line by line, sorting each statement in each
email into buckets for “public interest” (Act applies) and “private interest” (Act does
not apply). That is simply wrong; as we showed in our opening brief, the Anti-SLAPP
Act requires the court to assess the speech in the aggregate. (Mem. 14.)
For example, the statute applies if the defendant’s “act” furthers the right of advocacy on public issues. § 16-5502(b). Accordingly, the court must evaluate the entire
“act” of publication, rather than separately parsing each line that the defendant has
published. Similarly, the statute directs courts to consider whether the defendant’s
“statements” are “directed primarily” toward public rather than private issues. D.C.

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Code § 16-5501(3). That, again, shows that the court should concentrate on the primary purpose of the defendant’s “statements” taken as a whole. (And Plaintiffs do not
deny that the WikiLeaks disclosure, taken as a whole, is “directed primarily” toward
public rather than private affairs.) Plaintiffs never engage with these arguments and
do not explain why they believe the statute calls for line-by-line review rather than
holistic analysis.
Plaintiffs next argue that “no case from a D.C. Court” has ever applied the AntiSLAPP Act to a case like this one. (Opp. 7.) Even if that were true, that would be no
reason not to apply the statute here. At best, Plaintiffs’ argument establishes only
that the issues presented here have not come up in the D.C. courts since the District
enacted its Anti-SLAPP Act just seven years ago. But the fact that the issue has not
come up in that short time in no way suggests that Plaintiffs’ view is right.
Plaintiffs also claim that applying the Anti-SLAPP Act here would mean that a
political operative’s emails “can be hacked.” (Opp. 9.) That is incorrect. The AntiSLAPP Act protects “written or oral statement[s]” (§ 16-5501); it does not protect conduct. The Act applies here because this case is only about the publication of the DNC
emails, and there can be no dispute that disclosing emails is speech. If a plaintiff had
sued instead for the illegal acquisition of the emails, the Act would not apply because
hacking into someone else’s email account is conduct, not speech. Applying the statute
here would not protect “hack[ing].”

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C. The Anti-SLAPP Act does not entitle Plaintiffs to take discovery
Plaintiffs, last of all, ask the Court to allow discovery before ruling on the antiSLAPP motion. The very purpose of the Anti-SLAPP Act, however, is to “protec[t]”
speakers from “expensive and time consuming discovery.” Mann, 150 A.3d at 1230. As
a result, the Act allows a court to order discovery only “when it appears likely that
targeted discovery will enable the plaintiff to defeat the motion and that the discovery
will not be unduly burdensome.” D.C. Code § 16-5502(c)(2).
Plaintiffs insist that this heightened standard does not even apply in federal court,
on the theory that it conflicts with Rule 26. That is incorrect. Rule 26 does not grant
litigants an unconditional right to take discovery. Quite the contrary, the rule allows
courts to impose “limitations on discovery.” Fed. R. Civ. P. 26(f)(3)(E); see Viles v. Ball,
872 F.2d 491, 494 (D.C. Cir. 1989) (“The district court has broad discretion … to allow
or deny discovery”). Nothing in the rule requires a district court to disregard the D.C.
Anti-SLAPP Act when deciding whether to grant discovery on D.C.-law claims. The
anti-SLAPP standard is thus compatible with Rule 26, and the Court should apply
that standard in this case.
Plaintiffs cannot satisfy the Anti-SLAPP Act’s standard for targeted discovery.
First, Plaintiffs’ request for discovery has no “target.” They identify no discrete categories of documents they believe will help them prove their case. They candidly admit
their desire to launch a fishing expedition into all the documents that the Campaign
has collected “in responding to inquiries from Congress and the Department of Justice.” (Opp. 10.) Plaintiffs may be curious about what the Campaign has produced,

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but they do not explain why the Campaign’s productions to others will shed light on
the specific issue here: the publication of the DNC emails.
Second, Plaintiffs have not shown that it is “likely” that targeted discovery would
enable them to defeat the anti-SLAPP motion. Even with targeted discovery, Plaintiffs’ claims would still fail for a variety of reasons: Plaintiffs have failed to establish
diversity jurisdiction, failed to establish personal jurisdiction, failed to establish
venue, failed to show that D.C. substantive law governs their claims, failed to fulfill
the elements of the public-disclosure and intentional-infliction torts, and failed to
overcome the First Amendment. Plaintiffs have not explained how targeted discovery
would help them overcome any of those problems.
Third, discovery would be “unduly burdensome.” Plaintiffs claim that the Campaign need only turn over the documents that it has “already collected” in response
to inquiries from Congress and the Special Counsel. (Opp. 10.) But Plaintiffs are not
entitled to receive every single document that Congress and the Special Counsel have
sought—particularly since the production is confidential. Conversely, Plaintiffs might
ask for some documents that Congress and the Special Counsel have not sought. Thus,
the Campaign cannot simply turn over the same documents it has already produced
to Congress and the Special Counsel; it would have to review thousands of documents
all over, to determine whether they fit within Plaintiffs’ (as yet unspecified) discovery
requests. That is unduly burdensome. The Court should therefore deny Plaintiffs’ request for discovery.

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CONCLUSION
The Court should dismiss Plaintiffs’ claims for public disclosure of private facts
and intentional infliction of emotional distress in accordance with the D.C. AntiSLAPP Act.

Dated: December 29, 2017

Respectfully submitted,
/s/ Michael A. Carvin
Michael A. Carvin (DC Bar No. 366784)
Counsel of Record
Vivek Suri (DC Bar No. 1033613)
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]

Jeffrey Baltruzak (PA Bar No. 318156)
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
[phone]
[e-mail]

Counsel for Donald J. Trump for President, Inc.

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CERTIFICATE OF SERVICE
I certify that on December 29, 2017, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notice of electronic filing
to all registered parties.
Dated: December 29, 2017

/s/ Michael A. Carvin
Michael A. Carvin
Counsel for Donald J. Trump for President,
Inc.