The main goal of all Anti-SLAPP laws is to protect the speaker from being subjected to prolonged litigation for a case that, in the end, will be dismissed anyway. The primary part of this litigation to be avoided is discovery where the plaintiff gets to demand documents and make invasive inquiries of the plaintiff. Not only does this run up the speaker’s attorney’s fees and costs, but it can be very distressful to the speaker.
But are the circumstances where the plaintiff should be allowed to engage in discovery to prove that the plaintiff has a good case that will survive dismissal? This issue came up in a recent court opinion involving the New Jersey Uniform Public Expression Protection Act (“UPEPA”). The case is Wunsch v. CTE Republicans For Englewood Cliffs, 2026 WL 60327 (N.J.Super.App.Div., Jan. 8, 2026), which you can read for yourself here.
Albert H. Wunsch III was an attorney and special counsel to the Borough of Englewood Cliffs in New Jersey. A person by the name of Kris Kim was running as a Democrat for the Borough’s mayor. A local group of Republicans made a number of statements which tied Wunsch to Kim and also accused Wunsch of corruption.
Although Wunsch claimed that the statements were false, Wunsch was terminated as the Borough’s attorney and the statements caused his reputation to be questioned as corrupt. To clear his name, Wunsch brought a defamation lawsuit against the Republican group (“CTE”) and the persons who had made the statements about him.
The defendants filed a special motion under New Jersey’s UPEPA seeking dismissal of Wunsch’s lawsuit. The trial court held at least one hearing on the special motion, but ultimately denied the special motion on the basis that Wunsch had adequately stated the elements of his claims and — and this becomes the main issue on appeal — Wunsch needed additional discovery to prove up his claims.
Defendants appealed the trial court’s denial of their UPEPA special motion to the Appellate Division of the New Jersey Superior Court. This resulted in the aforementioned opinion. Defendants of course argued that the trial court erred in denying their special motion because Wunsch had not proven up each element of his claims with admissible evidence.
This was correct: Wunsch has indeed not presented sufficient evidence on some elements to make his case well enough to survive the special motion. But that did not end the inquiry.
The UPEPA allows for limited discovery in some situations to allow a party to gather the evidence that they need to defeat the special motion. This doesn’t mean that the plaintiff gets to go on a fishing expedition to see if there is any element to support his claims, but rather if the plaintiff can identify specific discovery that would make his case, then that should be allowed by the court in its discretion.
Here, the trial court allowed limited discovery to determine which of the defendants were responsible for which statements, whether those statements were made with actual malice, and on whether Wunsch had suffered damages as a result of the defendants’ statements.
ANALYSIS
The New Jersey UPEPA as adopted provides that “the court may allow limited discovery if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden . . . and the information is not reasonably available unless discovery is allowed.” This is the same as provided in the uniform Act as adopted by the Uniform Law Commission.
There are some important clauses in this provision. First, that the court “may allow” means that the decision whether to allow such discovery is discretionary on the part of the trial judge. It is not automatic.
Second, the clauses “limited discovery” and “specific information” mean that the plaintiff can only get the specific discovery he needs to make his case. This means no “fishing expeditions” or anything like general discovery. The plaintiff tells the court that “I need to get X” and the court will restrict discovery to X only.
Third, and lastly, the clause “the information is not reasonably available unless discovery is allowed” means that the plaintiff cannot seek discovery of something to which the plaintiff already has access. The best example of something that is available to a plaintiff is public information. If the plaintiff can get the information from, say, an SEC filing, then the plaintiff must go that route instead of bothering the speaker.
Situations where the court allows discovery in regard to a Anti-SLAPP special motion should be rare. One of the purposes of Anti-SLAPP laws, including the UPEPA, is to tell plaintiffs that they had better have all their ducks in a row before they file their lawsuit, not afterwards.
Oh, sure, there will be cases where a plaintiff will legitimately need some discovery to make their case, but the courts should view these requests with a critical eye. For it is all too easy for a plaintiff to feign a need for discovery just to heap more abuse through legal fees on the speaker. This may sometimes make for difficult decisions by a judge, but that’s why the issue is entrusted to the experience and good common sense of the judge in exercising her discretion.
As here.
Read the full article here