Khan v. Orbis Business Limited

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CV-919

MIKHAIL FRIDMAN, PETR AVEN, AND GERMAN KHAN, APPELLANTS,

V.

ORBIS BUSINESS INTELLIGENCE LIMITED AND CHRISTOPHER STEELE, APPELLEES.

Appeal from the Superior Court
of the District of Columbia
(CAB-2667-18)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued November 21, 2019 Decided June 18, 2020)

Alan S. Lewis, with whom John J. Walsh, Madelyn K. White, and Kim Hoyt
Sperduto were on the brief, for appellants.

Christina Hull Eikhoff, with whom Kristin Ramsay and Kelley C. Barnaby
were on the brief, for appellees.

Before BLACKBURNE-RIGSBY, Chief Judge, and FISHER and BECKWITH,
Associate Judges.1

1
Associate Judge McLeese was a member of the panel at the time of oral
argument. He later recused himself and was replaced by Chief Judge Blackburne-
Rigsby.
 2

FISHER, Associate Judge: Appellants challenge an order of the Superior

Court which granted appellees’ special motion to dismiss, brought under the

District of Columbia Anti-SLAPP Act. D.C. Code §§ 16-5501-5505 (2012 Repl.

& 2019 Supp.). Appellants present three primary arguments: (1) the Anti-SLAPP

Act does not apply to the facts of this case; (2) assuming that the Anti-SLAPP Act

does apply, appellants have demonstrated that their claim is likely to succeed on

the merits; and (3), in any event, the court erred by granting the special motion to

dismiss without allowing appellants to conduct targeted discovery. Finding

appellants’ arguments unpersuasive, we affirm the trial court’s judgment

dismissing the case.

I. Factual and Procedural Background

According to appellants’ complaint, in advance of the 2016 presidential

election, Washington, D.C.-based Fusion GPS hired appellees Christopher Steele

and his company Orbis Business Intelligence Limited (“Orbis”) to conduct

opposition research about then-candidate Donald J. Trump. While appellees were

initially hired by Mr. Trump’s Republican opponents, once it became clear that he

would be that party’s nominee, appellees began working for the Democratic

National Committee and Hillary Clinton’s campaign. Beginning that summer,
 3

appellees investigated what if any connections Mr. Trump and his campaign might

have to Russia and Russian President Vladimir Putin, and compiled the results of

their investigation into Company Intelligence Reports (“CIRs”). The complaint

states that by the end of October 2016 appellees had created seventeen CIRs,

which collectively became known as the Steele Dossier.

Appellants Mikhail Fridman, Petr Aven, and German Khan are “ultimate

beneficial owners” of Alfa Group (“Alfa”), a “Russian business conglomerate.”

They claim that one of the reports in the Steele Dossier, CIR 112, defamed them.

CIR 112 is a two-page report entitled “RUSSIA/US PRESIDENTIAL ELECTION:

KREMLIN-ALPHA GROUP CO-OPERATION.”2 The report mentions each

appellant by name and refers to an alleged relationship among appellants, their

company Alfa Group, and President Putin. The report begins with a three-bullet

summary which states:

 Top level Russian official confirms current closeness
of Alpha Group-PUTIN relationship. Significant
favours continue to be done in both directions and
FRIDMAN and AVEN still giving informal advice to
PUTIN, especially on the US

2
CIR 112 consistently refers to appellants’ company as Alpha Group, but
appellants represent that the proper spelling is Alfa Group.
 4

 Key intermediary in PUTIN-Alpha relationship
identified as Oleg GOVORUN, currently Head of a
Presidential Administration department but
throughout the 1990s, the Alpha executive who
delivered illicit cash directly to PUTIN

 PUTIN personally unbothered about Alpha’s current
lack of investment in Russia but under pressure from
colleagues over this and able to exploit it as lever over
Alpha interlocutors

Following the summary, the report contains three numbered paragraphs

marked “[d]etail.” In relevant part, this section states that, “[s]peaking to a trusted

compatriot in mid-September 2016, a top level Russian government official”

discussed the relationship between Putin and “the Alpha Group of businesses led

by oligarchs Mikhail FRIDMAN, Petr AVEN and German KHAN.” These

“leading figures in Alpha” are on “very good terms with PUTIN,” and

“[s]ignificant favours continue[] to be done in both directions, primarily political

ones for PUTIN and business/legal ones for Alpha.” According to the report, in

the 1990s Fridman and Aven relied upon Govorun, who at the time was “Head of

Government Relations at Alpha Group,” to act as “the ‘driver’ and ‘bag carrier’

used by FRIDMAN and AVEN to deliver large amounts of illicit cash to the

Russian president, at the time deputy Mayor of St. Petersburg.” The report

concludes by stating that “Alpha held ‘kompromat’ on PUTIN and his corrupt

business activities from the 1990s,” but at the same time, “the Russian president
 5

was able to use pressure . . . from senior Kremlin colleagues as a lever on

FRIDMAN and AVEN to make them do his political bidding.”

According to appellants’ complaint, Steele personally briefed members of

the media about the dossier. After these alleged briefings, news articles began

circulating which described some of the contents of the dossier. A writer for

Mother Jones magazine interviewed Steele and wrote an article entitled “A

Veteran Spy Has Given the FBI Information Alleging a Russian Operation to

Cultivate Donald Trump,” which was published on October 31, 2016. The author

stated that he had “reviewed” the early reports in the dossier, from which the

article quoted.

Appellants also allege that, in addition to contacting the media, Steele met

with various politicians to discuss the dossier. On separate occasions in September

2016, appellants claim, Steele briefed an official from the State Department and

another from the Department of Justice. He also met with an individual affiliated

with Senator John McCain and, in November 2016, delivered a copy of the dossier

“for redelivery and further publication to Senator McCain in D.C.”
 6

On January 10, 2017, after Mr. Trump won the presidential election,

BuzzFeed, Inc. (“BuzzFeed”), published the Steele Dossier in its entirety on the

internet. Along with the dossier, BuzzFeed published an article entitled “These

Reports Allege Trump Has Deep Ties to Russia.”

Appellants initiated this lawsuit in the Superior Court on April 16, 2018,

alleging that CIR 112 included “facially defamatory statements.” The lawsuit

claimed that appellees “did not know the unverified, anonymous, inherently

harmful accusations in CIR 112 about [appellants] to be true” when they

“intentionally” published that information to the individuals and entities discussed

above. In response, appellees filed a special motion to dismiss pursuant to § 16-

5502 of the District of Columbia Anti-SLAPP Act and a motion to dismiss under

Super. Ct. Civ. R. 12(b)(6).

The Honorable Anthony C. Epstein granted appellees’ special motion to

dismiss and denied the Rule 12(b)(6) motion as moot. Judge Epstein determined

that appellees had made a prima facie showing that the Anti-SLAPP Act applied to

the conduct at issue because it involved a right of advocacy on an issue of public

interest. Regarding the right of advocacy, Judge Epstein held that, “[e]ven if Mr.
 7

Steele did not meet with the media in a public place or forum, he engaged in

expression involving communicating information to members of the U.S. public

through the media.” Indeed, the court explained, “Plaintiffs challenge Mr. Steele’s

provision of his dossier to the media precisely because he expected and intended

the media to communicate the information to the public in the United States and

around the world.”

The court commented that the fact that the dossier contained so-called “raw

intelligence” did not make the Act inapplicable because “the public is interested in

facts as well as opinions,” and “[t]he First Amendment protects not only statements

of pure opinion but also statements of fact and of opinions that imply or rely on

provably false facts, unless the plaintiff proves that the statements are false and

that the defendant’s fault in publishing the statements met the requisite standard.”

On the question of whether the expressive conduct concerned an issue of public

interest, Judge Epstein found that CIR 112 addressed not just the possibility of

Russian interference in the 2016 presidential election but also “relations between

the United States and Russia more generally.” He determined that the

“involvement of Russian international businessmen in Russian foreign policy,

specifically including Russian foreign policy toward the United States, involves an
 8

issue of public interest in the United States, regardless of whether it relates to a

particular election.”

Next, the judge concluded that appellants had not offered evidence from

which a reasonable jury could return a verdict in appellants’ favor. In reaching that

determination, Judge Epstein found that appellants were limited-purpose public

figures who had failed to meet the constitutionally required standard of showing

that appellees acted with actual malice. Finally, Judge Epstein denied appellants’

request for targeted discovery, holding that appellants had failed to show that

discovery would be “likely to uncover clear and convincing evidence that, for

example, Mr. Steele fabricated any information provided in CIR 112 or had solid

intelligence that his source(s) fabricated it.” This appeal followed.

II. Discussion

“A ‘SLAPP’ (strategic lawsuit against public participation) is an action

‘filed by one side of a political or public policy debate aimed to punish or prevent

the expression of opposing points of view.’” Competitive Enter. Inst. v. Mann, 150

A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report
 9

of Comm. on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010)

(“November Report”)). In enacting the Anti-SLAPP Act, the Council of the

District of Columbia took into consideration research showing that SLAPPs:

[H]ave been increasingly utilized over the past two
decades as a means to muzzle speech or efforts to
petition the government on issues of public interest.
Such cases are often without merit, but achieve their
filer’s intention of punishing or preventing opposing
points of view, resulting in a chilling effect on the
exercise of constitutionally protected rights.

November Report at 1. To mitigate “the amount of money, time, and legal

resources” that defendants named in such lawsuits must expend, the Anti-SLAPP

Act created substantive rights which accelerate the often lengthy processes of civil

litigation. Id. These rights include a special motion to dismiss which provides for

the expeditious dismissal of a complaint, see D.C. Code § 16-5502(a), and the

ability to stay discovery until that motion has been ruled upon, id. § 16-5502(c).

The party filing a special motion to dismiss must first show that the Act

applies. Id. § 16-5502(b); see Mann, 150 A.3d at 1232. Once applicability has

been established, the burden then shifts to the non-moving party to show “that the

claim is likely to succeed on the merits.” D.C. Code § 16-5502(b). If the non-
 10

moving party fails to meet that standard, then the motion must be granted and the

case will be dismissed with prejudice. Id. § 16-5502 (b), (d).

A. Prima Facie Showing That the Anti-SLAPP Act Applies

We first address whether appellees have made a prima facie showing that the

claims at issue fall under the protection of the Anti-SLAPP Act — do the claims

“aris[e] from an act in furtherance of the right of advocacy on issues of public

interest”? Id. § 16-5502(a). Appellants do not challenge that the “content of CIR

112 includes ‘an issue of public interest.’” However, the parties do dispute

whether the publication of CIR 112 met the “act in furtherance of the right of

advocacy” requirement of the Act. Id. Although our opinion in Doe No. 1 v.

Burke, 91 A.3d 1031, 1041-44 (D.C. 2014), addressed the definition of an “issue of

public interest,” none of our published opinions to date has construed “in

furtherance of the right of advocacy.”

The Anti-SLAPP Act defines an “act in furtherance of the right of advocacy on

issues of public interest” as:
 11

(A) Any written or oral statement made:

(i) In connection with an issue under consideration
or review by a legislative, executive, or judicial
body, or any other official proceeding authorized
by law; or

(ii) In a place open to the public or a public forum
in connection with an issue of public interest; or

(B) Any other expression or expressive conduct that
involves petitioning the government or communicating
views to members of the public in connection with an
issue of public interest.

D.C. Code § 16-5501(1). The parties agree that § 16-5501(1)(A)(i) does not apply

to the facts at hand. This leaves us to determine whether appellees’ actions should

be considered a written or oral statement made “in a place open to the public or a

public forum in connection with an issue of public interest,” id. § 16-

5501(1)(A)(ii), or expression “that involves . . . communicating views to members

of the public in connection with an issue of public interest,” id. § 16-5501(1)(B).

As discussed in detail below, we conclude that appellants’ conduct falls within

§ 16-5501(1)(B). We therefore do not discuss the meaning or application of § 16-

5501(1)(A)(ii).
 12

In order for Subsection B to apply, there must be evidence that appellees

“communicat[ed] views to members of the public.” Id. at § 16-5501(1)(B).

Although the complaint alleges that Steele met with members of the media in

private, it is reasonable to infer that Steele expected and intended that the media in

turn would communicate this information to the public. However, appellants

challenge the application of Subsection B by asserting that CIR 112 “expresse[d]

no views.” According to appellants, the phrase “communicating views” applies

only to beliefs or opinions and cannot be “stretched to encompass the compiling

and conveyance of’ ‘raw intelligence.’” They argue that “views mean views —

not facts,” and that any other reading of the word “views” is contrary to its “well

understood meaning.” Relying upon language from the trial court’s order,

appellees, on the other hand, contend that the statutory language encompasses not

“only pure opinion speech” but also factual statements and “raw intelligence.”

To determine whether a particular statement meets this definition of

advocacy, we think it helpful to look to defamation law for guidance. Our law

recognizes that speech is capable of conveying different meanings depending upon

the context in which it occurs. See Klayman v. Segal, 783 A.2d 607, 614 (D.C.

2001) (requiring the court to look at the publication “as a whole, in the sense it

would be understood by the readers to whom it was addressed” to determine
 13

whether speech is capable of defamatory meaning) (quoting Howard Univ. v. Best,

484 A.2d 958, 989 (D.C. 1984)). Indeed, it is quite possible that speech may have

a defamatory meaning in some circumstances, but not in others. See Wallace v.

Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 878 (D.C. 1998) (holding

that statements that “an attorney is often out of the office during normal working

hours, . . . could reasonably be construed, in context, as a reflection on her

professional performance”); see also Southern Air Transp., Inc. v. American

Broadcasting Companies, Inc., 877 F.2d 1010, 1015 (D.C. Cir. 1989) (considering

statements that a company “engaged in dealings with the government of South

Africa” capable of defamatory meaning because at the time, there was “intense

antipathy felt by a great number of Americans towards South Africa”). Thus,

courts must look to the context of the challenged speech to determine whether it

was “capable or susceptible of a defamatory meaning.” Klayman, 783 A.2d at 614.

Similarly, whether expressive conduct communicates a view depends not

solely on the words spoken, but also upon the circumstances surrounding the

speech, including when, where, why, and how the words were uttered, as well as

the characteristics of the speaker and the audience. It is certainly possible that

statements of fact not overtly couched as an opinion can communicate a view when

considered in context and as a whole.
 14

According to appellants’ complaint, Steele and his company were hired by

Mr. Trump’s political opponents to conduct “opposition research” into possible

dealings Mr. Trump and his campaign had with Russia. The complaint itself

alleges that the Steele Dossier in general, and CIR 112 in particular, were created

“to publicly discredit its target,” an action that was “[c]onsistent with the intended

purpose of ‘oppo research.’” Given the background detailed in the complaint, CIR

112 communicates the view that Fridman, Aven, and Khan have had a

longstanding close and influential relationship with President Putin — a

relationship which includes illicit acts. In discussing appellants’ ability to

influence Putin (or to do his bidding) “on foreign policy, and especially about the

U.S.,” CIR 112 further communicates the view that appellants are powerful figures

who can affect relations between Russia and the United States. By publishing CIR

112 to the media, appellees communicated this view to members of the public.

Appellees have therefore made a prima facie showing that the publication of CIR

112 falls within the protection of the Anti-SLAPP Act.

B. “Likely To Succeed on the Merits”
 15

Since appellees’ conduct qualifies for the protections of the Anti-SLAPP

Act, the burden shifts to appellants to show “that the[ir] claim [of defamation] is

likely to succeed on the merits.” D.C. Code § 16-5502(b). Our role is “to test the

legal sufficiency of the evidence to support the claims.” Mann, 150 A.3d at 1240.

We must affirm a ruling granting a special motion to dismiss if the “claimant could

not prevail as a matter of law, that is, after allowing for the weighing of evidence

and permissible inferences by the jury.” Id. at 1236 (emphasis omitted).

1. Public Figure Determination

a. Legal Framework

“To succeed on a claim for defamation, a plaintiff must prove: ‘(1) that the

defendant made a false and defamatory statement concerning the plaintiff; (2) that

the defendant published the statement without privilege to a third party; (3) that the

defendant’s fault in publishing the statement met the requisite standard; and (4)

either that the statement was actionable as a matter of law irrespective of special

harm or that its publication caused the plaintiff special harm.’” Id. at 1240
 16

(quoting Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)) (footnotes omitted).

On appeal, the parties focus on the third element (the standard of fault). 3

The standard against which we measure the defendant’s fault in publishing

turns upon whether the plaintiff is a public or a private figure. See Moss v.

Stockard, 580 A.2d 1011, 1022 (D.C. 1990). Given their “ready access . . . to mass

media of communication, both to influence policy and to counter criticism of their

views and activities,” Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967)

(Warren, C.J., concurring), public figures are required “to prove greater fault by a

greater degree of factual certainty than private plaintiffs,” Moss, 580 A.2d at 1029.

The term “public figure” can be broken down into two categories: general

purpose public figures and limited-purpose public figures. See Gertz v. Welch,

Inc., 418 U.S. 323, 345 (1974). Because of their “positions of such persuasive

power and influence,” general purpose public figures “are deemed public figures

3
For purposes of this analysis, we assume without deciding that the nearly
identical affidavits each appellant submitted, which assert that the statements in
CIR 112 regarding illicit activities and a “quid pro quo” relationship with President
Putin were false, are enough to make the first element of a defamation claim a
question for the jury to decide.
 17

for all purposes.” Id. at 345. “[L]imited-purpose public figures, who assume roles

‘in the forefront of particular public controversies in order to influence the

resolution of the issues involved,’” are only considered public figures in relation to

the particular controversy (or controversies) in which they have involved

themselves. Moss, 580 A.2d at 1030 (quoting Gertz, 418 U.S. at 345).

“The task of determining whether a defamation plaintiff is a limited-purpose

public figure is a difficult one, requiring a highly fact-intensive inquiry.” Doe

No. 1, 91 A.3d at 1041. The ultimate determination is a question of law, however.

See Moss, 580 A.2d at 1030-31. To aid in this process, the D.C. Circuit devised a

three-part test in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-

97 (D.C. Cir. 1980). We adopted the Waldbaum test in Moss. 580 A.2d at 1030-

32. Under this framework, the trial court first must “decide whether there is a

public controversy, and determine its scope.” Id. at 1030. This inquiry is

backward-looking and requires us to decide “whether the controversy to which the

defamation relates was the subject of public discussion prior to the defamation.”

Id. Next, the court asks “whether ‘a reasonable person would have expected

persons beyond the immediate participants in the dispute to feel the impact of its

resolution.’” Id. (quoting Waldbaum, 627 F.2d at 1297).
 18

After the controversy is defined, we look at “the plaintiff’s role in it.” Moss,

580 A.2d at 1031. To be a limited-purpose public figure, “[t]he plaintiff must have

achieved a special prominence in the debate, and either ‘must have been purposely

trying to influence the outcome or could realistically have been expected, because

of his position in the controversy, to have an impact on its resolution.’” Id.

(quoting Waldbaum, 627 F.2d at 1297). “Occasionally, someone is caught up in

the controversy involuntarily and, against his will, assumes a prominent position in

its outcome.” Waldbaum, 627 F.2d at 1298; see Moss, 580 A.2d at 1033. In those

instances, “[u]nless he rejects any role in the debate, he too has ‘invited comment’

relating to the issue at hand.” Waldbaum, 627 F.2d at 1298.

Finally, if both of the previous elements are satisfied — “there is a

preexisting public controversy which the plaintiff undertakes to influence” — we

consider “whether the alleged defamation was germane to the plaintiff’s

participation in the controversy.” Moss, 580 A.2d at 1031.

b. When Do We Conduct the Public Figure Analysis?
 19

As a preliminary matter, appellants assert that the Superior Court erred in

conducting a public figure analysis at the special motion to dismiss stage of this

litigation. They argue that unless a plaintiff concedes his status as a public figure,

he need only present a prima facie case of negligence in publishing to defeat a

special motion to dismiss, rather than meet the heightened “actual malice” standard

that applies to both general and limited-purpose public figures. Appellants

complain that “a plaintiff cannot be required to prove something that he is not

required to plead,” and urge us to recognize that “whether a plaintiff is a public

figure is an affirmative defense.” Therefore, according to appellants, a plaintiff’s

status as a public figure should have no bearing upon the Anti-SLAPP Act’s

requirement that he “demonstrate[] that the claim is likely to succeed on the

merits.” D.C. Code § 16-5502(b).

To support their argument, appellants point to two unpublished district court

opinions: Fridman v. Bean LLC, No. 17-2041, 2019 WL 231751 (D.D.C. Jan. 15,

2019), and MiMedx Grp, Inc. v. DBW Partners, LLC, No. 17-1925, 2018 WL

4681005 (D.D.C. Sept. 28, 2018). Both cases were decided after the Superior

Court issued its opinion in this matter and therefore were not addressed below. In
 20

Fridman, which is a companion case to the current litigation and involves a similar

challenge to CIR 112, the district court denied the defendants’ Rule 12(b)(6)

motion, concluding that it was premature to resolve the question of whether

plaintiffs were public figures. 2019 WL 231751, at *4. The court reasoned that

the plaintiffs were not required to plead sufficient facts to show that the defendants

published CIR 112 with actual malice because the heightened fault standard would

only be raised “as an affirmative defense to defeat plaintiffs’ defamation claim.”

Id. The court further stated that the plaintiffs had no obligation to overcome that

affirmative defense because “resolution of an affirmative defense is proper on a

motion to dismiss only if the facts required to establish the defense are apparent on

the face of the complaint (or if the plaintiff concedes public figure status or the

facts that establish it).” Id.

Likewise, the district court denied the defendants’ Rule 12(b)(6) motion in

MiMedx because it determined that the defamation plaintiff had no “obligation to

anticipate in its complaint the need to plead facts to defend against defendants’

assertion that it is a public figure.” 2018 WL 4681005, at *6. Although the court

opined that the plaintiff “may later be deemed a public figure or limited-purpose

public figure, . . . its failure to allege actual malice” did not require dismissal on

Rule 12(b)(6) grounds. Id.
 21

We are not bound by these unpublished opinions from the federal district

court. More importantly, we emphasize, the judges in both Fridman and MiMedx

were not purporting to apply the Anti-SLAPP Act. The Anti-SLAPP Act was not

at issue in MiMedx, and the trial judge in Fridman declined to apply the Act in

federal court. See Fridman, 2019 WL 231751, at *2. 4

The standards for adjudicating a special motion to dismiss and a Rule

12(b)(6) motion are materially distinct. In ruling on a Rule 12(b)(6) motion, a

court looks at whether the complaint “contain[s] sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Comer v. Wells

Fargo Bank, N.A., 108 A.3d 364, 371 (D.C. 2015) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). There is no requirement that a plaintiff offer any evidence

to defeat the motion. In re Estate of Curseen, 890 A.2d 191, 193 (D.C. 2006).

4
Citing the D.C. Circuit’s decision in Abbas v. Foreign Policy Group, LLC,
783 F.3d 1328, 1334-37 (D.C. Cir. 2015), the judge denied the defendant’s special
motion to dismiss, concluding that “a federal court sitting in diversity must apply
Federal Rules of Civil Procedure 12 and 56 rather than D.C.’s Anti-SLAPP law.”
Fridman, 2019 WL 231751, at *2.
 22

However, in opposing a special motion to dismiss, the plaintiff must

shoulder the burden of showing that his claim is likely to succeed on the merits. In

Mann, we explained that this requirement “mandates the production or proffer of

evidence that supports the claim.” 150 A.3d at 1233. Because the “standards

against which the court must assess the legal sufficiency of the evidence are the

substantive evidentiary standards that apply to the underlying claim and related

defenses and privileges,” plaintiffs are required to present more than the mere

allegations in the complaint. Id. at 1236. The process in essence accelerates the

consideration of available defenses. Thus, “[t]he precise question the court must

ask [in ruling on a special motion to dismiss] is whether a jury properly instructed

on the law, including any applicable heightened fault and proof requirements,

could reasonably find for the claimant on the evidence presented.” Id. (emphasis

added). See Doe No. 1, 91 A.3d at 1045 (concluding that a special motion to quash

subpoena should have been granted; appellee, a public figure, had failed to show a

likelihood of success on the merits because she could not show actual malice).

This fundamental difference in procedure makes the reasoning in Fridman and

MiMedx inapplicable to a special motion to dismiss.

Rather than disposing of a meritless lawsuit “early in the litigation,” as the

Act intends, see Mann, 150 A.3d at 1238, appellants’ reading of the statute would
 23

prolong the litigation process and render the special motion to dismiss ineffective

when it comes to public figures, who would be required to prove actual malice at

trial, but could defeat the special motion with a lesser showing of fault. Id. at

1238. The trial court properly conducted a public figure analysis prior to ruling on

the special motion to dismiss.

c. Application to the Facts at Hand

The Superior Court identified a real, public controversy, which it defined as

“Russian oligarchs’ involvement with the Russian government and its activities

and relations around the world, including the United States.” This definition of a

preexisting public controversy was supported by the record. Moreover, we agree

with the trial court that the “U.S. public today continues to have a strong interest in

Russia’s relations with the United States and in the political and commercial

relationships between Russian oligarchs and the Russian government.” Notably,

when faced with a similar issue, our sister courts in the District of Columbia have

concluded that “there can be no doubt [that] a public controversy exists relating to

Russian oligarchs acting on behalf of the Russian government.” Deripaska v.

Associated Press, 282 F. Supp. 3d 133, 142 (D.D.C. 2017). See also OAO Alfa
 24

Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, 43 (D.D.C. 2005) (holding that

“[t]he rise of the oligarchs and the decline of the Russian economy into what one

observer described as a ‘criminal-syndicalist state’” was a public controversy

because it was the topic of “intense discussion” throughout the United States and

the world). 5

Appellants argue that the trial court misidentified the controversy and assert

that it should be defined instead as “Donald J. Trump’s ties to Russia and Vladimir
5
In determining that appellants were limited-purpose public figures, Judge
Epstein referred to OAO Alfa Bank v. Center for Public Integrity, 387 F. Supp. 2d
20 (D.D.C. 2005), a prior defamation case. That case was brought by appellants
Fridman and Aven and their companies and involved a challenge to statements
from a public interest organization alleging that the plaintiffs had connections to
organized crime in Russia. Id. at 23. The trial court in OAO Alfa Bank held that
appellants were limited-purpose public figures. Id. at 47. On appeal in the current
case, appellants maintain that Judge Epstein improperly “import[ed] the OAO
limited public figure finding into this case.” They assert that Judge Epstein’s
mention of OAO Alfa Bank was “an invalid shortcut”— an improper use of issue
preclusion. We disagree. Although Judge Epstein relied upon quotes from OAO
Alfa Bank, we do not read his opinion as impermissibly applying issue preclusion
to determine appellants’ public figure status. Rather, the quotations serve as
evidence that appellants have been the subject of international discussion for years,
and correspondingly have “enjoy[ed] access to the channels of effective
communication that enable them to respond to any defamatory statements and
influence the course of public debate.” Id. at 45 (internal quotation marks
omitted). Judge Epstein explained why, based upon the documents submitted by
appellees in this case, the “findings in OAO Alfa Bank are valid today.” The
opinion does not, as appellants suggest, simply adopt the finding of OAO Alfa
Bank without conducting an independent analysis.
 25

Putin.” In advancing that conclusion, appellants contend that the Supreme Court’s

decision in Gertz stands for the proposition that “[c]ourts should not base their

decision on how to define the controversy on the content of the defamatory

statement . . . but rather, on the issue or dispute that triggered the making of the

defamatory statements.” Following that reasoning, appellants maintain that

because the Steele Dossier was created in order to investigate “Donald J. Trump’s

ties to Russia and Vladimir Putin,” the controversy “giving rise” to the allegedly

defamatory statements was “the controversy surrounding Donald Trump’s

presidential campaign.” At its core, appellants’ argument urges us to focus on why

CIR 112 was published.

This argument is unconvincing. While Gertz furnishes the language “giving

rise to the defamation,” it does not supply a framework for analyzing how to define

the controversy. 418 U.S. at 352. In the nearly fifty years since Gertz was

decided, cases such as Waldbaum and Moss have done so. Waldbaum itself

recognizes that multiple relevant controversies may exist at the same time, and that

“a narrow controversy may be a phase of another, broader one.” 627 F.2d at 1297

n.27.
 26

In light of Waldbaum, appellants’ assertion that the Steele Dossier was

created to investigate candidate Trump’s ties to Russia is not incompatible with the

Superior Court’s definition of the controversy. While gathering information about

Mr. Trump and his connections to Russia may have been the motivation behind

creating the dossier, CIR 112 focuses on the preexisting controversy surrounding

Russian oligarchs and their influence upon the Russian government. This

discussion might well have provided important background information related to

the election. Nevertheless, the motivation leading to the creation of the Steele

Dossier does not compel us to define the controversy differently than the Superior

Court did.

Our next step is to analyze appellants’ role in the controversy. See

Waldbaum, 627 F.2d at 1297. “The plaintiff either must have been purposely

trying to influence the outcome or could realistically have been expected, because

of his position in the controversy, to have an impact on its resolution.” Id.

Amassed in the record before us are hundreds of pages of news articles discussing

appellants’ status as Russian oligarchs and their ties to Vladimir Putin.

Furthermore, as the record shows, in the years prior to the publication of CIR 112,

there were thousands of internet search hits for each appellant, showing appellants’

involvement in the controversy prior to September 2016. Included in these search
 27

hits are news articles detailing meetings each appellant has had with President

Putin as well as personal interviews the appellants have willingly given to the

media. These interviews have spanned a wide range of subjects, from discussions

of appellants’ hobbies and interests to statements regarding their businesses and

connections to the Kremlin.

The involvement appellants and their businesses had in litigation over a

decade before the election shows that they have been participating in a debate on

the world’s stage for quite some time. See OAO Alfa Bank, 387 F. Supp. 2d at 23.

In the interim appellants have not been shy about giving interviews and putting

forth their own views about their role with respect to the Russian government.

Even if their celebrity in this matter was a vestige of a previous era, it is evident

that appellants still “remain[] able to reply to attacks through the press, which is

continuing to cover [them].” Waldbaum, 627 F.2d at 1295 n.18. Based on this

record, we have no trouble upholding Judge Epstein’s conclusion that appellants

“have assumed special prominence in [the] controvers[y].”

Finally, we conclude that the challenged speech contained in CIR 112 was

germane to appellants’ participation in the controversy. See Waldbaum, 627 F.2d
 28

at 1298. At its core, CIR 112 discusses appellants’ relationship with President

Putin and the influence appellants have over the Russian government and its

“foreign policy . . . especially about the US.” These statements are directly related

to the public controversy identified by Judge Epstein. Since all three prongs of the

Waldbaum test are satisfied, we agree with the trial court that appellants are

limited-purpose public figures with respect to the speech at issue.

2. Did Appellees Publish with Actual Malice?

As limited-purpose public figures claiming they were defamed, appellants

are held to heightened proof requirements. Even at the special motion to dismiss

stage, appellants must proffer evidence capable of showing by the clear and

convincing standard that appellees acted with actual malice in publishing CIR 112.

See Mann, 150 A.3d at 1236. This constitutional standard “is a daunting one”

which very few public figures can meet. McFarlane v. Sheridan Square Press,

Inc., 91 F.3d 1501, 1515 (D.C. Cir. 1996) (quoting McFarlane v. Esquire

Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996)). To succeed in establishing actual

malice, appellants must show “that the statement was made with knowledge that it

was false or with reckless disregard of whether it was false or not.” Thompson v.
 29

Armstrong, 134 A.3d 305, 311 (D.C. 2016) (quoting New York Times v. Sullivan,

376 U.S. 254, 279-80 (1964)). Merely “show[ing] that [the] defendant should have

known better” than to believe the truth of his publication does not suffice.

Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 589 (D.C. Cir. 2016); see also St.

Amant v. Thompson, 390 U.S. 727, 731 (1968). Rather, the plaintiff must offer

evidence showing that “the defendant in fact entertained serious doubts as to the

truth of his publication,” St. Amant, 390 U.S. at 731, or acted “with a ‘high degree

of awareness of . . . probable falsity,’” id. (quoting Garrison v. Louisiana, 379 U.S.

64, 74 (1964)).

Appellants have not done so. They argue that the truth of the challenged

speech can be doubted if the information was learned from an “unverified and

anonymous” source and if bias was shown in its publication. They proffer three

pieces of evidence which they claim adequately support “an inference” of actual

malice.

Appellants first contend that the source of the statements “contained in CIR

112 was not merely unknown to readers, but more importantly, unknown to

Steele.” For this proposition, they rely upon language in CIR 112 which states:
 30

“[s]peaking to a trusted compatriot in mid-September 2016, a top level Russian

government official commented on the history and current state of relations

between President [Putin, appellants, and Alfa Bank].” Based solely on that

statement and the fact that CIR 112 did not identify a source, appellants assume

that Steele learned the information in the document from an “unverified and

anonymous” source. Building on this assumption, appellants assert that the

“evidence” supports an inference of actual malice under St. Amant, 390 U.S. at

731.

Appellants are mistaken. In St. Amant, the Supreme Court stated that a

defamation plaintiff is likely to meet the actual malice standard when the

defendant’s “story . . . is based wholly on an unverified anonymous telephone

call.” Id. But, although CIR 112 does not name a source, there is no reason to

expect that it would. 6 Appellants have identified nothing in the record to suggest

6
Intelligence reports, like the Steele Dossier, and even newspaper articles,
are often designed to conceal the identity of their source or sources. Nothing in St.
Amant or subsequent cases makes a defendant’s decision not to publicly name a
source the equivalent of actual malice. Moreover, without more, actual malice
would not be a reasonable inference even if Steele himself did not know the
identity of the speaker. The Supreme Court has recognized “that a public figure
plaintiff must prove more than an extreme departure from professional standards
and that a newspaper’s [biased] motive in publishing a story . . . cannot provide a
(continued…)
 31

that Steele learned the information he published through an anonymous tipster.

Nor have appellants identified anything showing that Steele did not test the

veracity of the intelligence he gained, assuming that it did derive from a source

unknown to him. Instead, appellants simply assert that appellees have failed to

rebut the contention that the source was unverified and anonymous because

“[t]here is no indication in CIR 112 or elsewhere that Steele knew the identity of

the anonymous Russian official who spoke to the unidentified ‘trusted

compatriot.’”

That argument misplaces the burden, which lies with the appellants to set

forth facts that would allow a jury to find actual malice. See Mann, 150 A.3d at

1236. Furthermore, under the reasoning in St. Amant and subsequent cases,

reliance upon a single source, even an unverified and anonymous one, will amount

to actual malice only if the defendant “had obvious reason to doubt” the

statement’s veracity. Jankovic, 822 F.3d at 590 (quotation omitted). Appellants

cannot point to anything establishing that it was reasonable to infer that there were

(…continued)
sufficient basis for finding actual malice.” Harte–Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 665 (1989).
 32

obvious reasons for Steele to doubt the credibility of his source. See Mann, 150

A.3d at 1236. 7

Appellants’ second proffer fares no better. Appellants claim that an

inference of bias must apply because Steele was hired to provide opposition

research on Donald Trump. While we have held that “bias providing a motive to

defame . . . may be a relevant consideration” in evaluating whether the defendant

acted with actual malice, id. at 1259, appellants’ reliance upon this statement is

misplaced. According to the allegations in the complaint, Steele and his company

were hired to conduct opposition research about candidate Trump and his

presidential campaign. Perhaps it is fair to infer that Steele was biased against Mr.

Trump, whom Steele had been hired by political opponents to investigate and

“publicly discredit.” However, this motivation would not necessarily extend to

appellants, who were not the “target” of Steele’s research and investigation.

7
Appellees assert in a footnote that appellants are not entitled to permissible
inferences in their favor. However, in Mann, we held that, before granting a
special motion to dismiss, a trial court must “allow[] for the weighing of evidence
and permissible inferences by the jury.” 150 A.3d at 1236.
 33

Finally, citing a news article, appellants claim that Steele admitted after the

dossier was published that up to 30% of it might prove to be inaccurate. 8 This

article, which was published over a year after the dossier was created, states that

although “Steele was adamant that his reporting was credible,” he “recogni[z]ed

that no piece of intelligence was 100% right.” Relying solely upon statements

allegedly made by Steele’s anonymous “friends,” the article reports that Steele

“assessed that his work on the Trump dossier was 70-90% accurate.”

Appellant’s reliance on this single statement ignores the context of the entire

twelve-page article, which quotes an associate as stating that Steele is “sober,

cautious, highly regarded, professional and conservative.” Even assuming that

their assertion about the dossier’s overall accuracy, which ironically is supported

only by anonymous sources, proved true, a jury properly instructed on the law

could not reasonably infer that this evidence amounted to proof of actual malice.

See Mann, 150 A.3d at 1232 (“[W]e conclude that in considering a special motion

to dismiss, the court evaluates the likely success of the claim by asking whether a

jury properly instructed on the applicable legal and constitutional standards could

8
Luke Harding, How Trump walked into Putin’s web, THE GUARDIAN,
(Nov. 15, 2017), https://www.theguardian.com/news/2017/nov/15/how-trump-
walked-into-putins-web-luke https://perma.cc/7Z7Y-N8UF.
 34

reasonably find that the claim is supported in light of the evidence that has been

produced or proffered in connection with the motion.”). As the Superior Court

rightfully noted, appellants have not maintained that Steele “subjectively believed

that the 10-30% of the Steele Dossier that would ultimately turn out to be

inaccurate included CIR 112.” Nor do appellants point to any evidence showing

that Steele was aware at the time he published the dossier that he was relying upon

inaccurate information. Indeed, according to the same article on which appellants

rely, Steele told friends that the dossier “was a thoroughly professional job, based

on sources who had proven themselves in other areas.”

For these reasons, even drawing reasonable inferences in appellants’ favor,

they have failed to proffer evidence capable of showing by the clear and

convincing standard that appellees acted with actual malice. Mann, 150 A.3d at

1236.

C. Denial of Targeted Discovery

Finally, appellants challenge the trial court’s denial of their request for

targeted discovery. The Act provides, as a substantive protection for defendants,

that once a special motion to dismiss has been filed, all discovery proceedings
 35

“shall be stayed until the motion has been disposed of.” D.C. Code § 16-

5502(c)(1). Nevertheless, “[w]hen it appears likely that targeted discovery will

enable the plaintiff to defeat the motion and that the discovery will not be unduly

burdensome, the court may order that specified discovery be conducted.” Id. § 16-

5502(c)(2).

As a general rule, “the intent of the lawmaker is to be found in the language

that he [or she] has used.” Peoples Drug Stores, Inc. v. District of Columbia, 470

A.2d 751, 753 (D.C. 1983) (en banc) (quoting Varela v. Hi-Lo Powered Stirrups,

Inc., 424 A.2d 61, 64 (D.C. 1980) (en banc)). Therefore, our first step in

interpreting § 16-5502(c) is to “look at the language of the statute by itself to see if

the language is plain and admits of no more than one meaning.” Davis v. United

States, 397 A.2d 951, 956 (D.C. 1979). While Subsection (c)(1) clearly and

unambiguously requires that discovery proceedings be stayed once a special

motion to dismiss is filed, the language of Subsection (c)(2) requires further

analysis.

In order for discovery to be allowed, two things must “appear[] likely”: (1)

“that targeted discovery will enable the plaintiff to defeat the motion,” and (2)
 36

“that the discovery will not be unduly burdensome.” D.C Code § 16-5502(c)(2).

The limiting language found in the second clause is well known to us. The

“unduly burdensome” phrase mimics the requirement set forth in Super. Ct. Civ. R.

26(g)(1)(C) that a party seeking discovery must attest that it is “neither

unreasonable nor unduly burdensome.” Both our court and the Superior Court

have adjudicated discovery disputes under the unduly burdensome standard. We

need not analyze this clause further, as it is evident the legislature chose to use a

“well-known term of art.” See Mann, 150 A.3d at 1234.

The first clause of Subsection (c)(2) requires further examination, however.

We recognize that “[t]he meaning — or ambiguity — of certain words or phrases

may only become evident when placed in context.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132 (2000). Therefore, “we do not read statutory

words in isolation; the language of surrounding and related paragraphs may be

instrumental to understanding them.” District of Columbia v. Beretta, U.S.A.,

Corp., 872 A.2d 633, 652 (D.C. 2005) (en banc).

In Mann we addressed the role of discovery in the statutory scheme:
 37

In short, the special motion to dismiss provision
authorizes final disposition of a claim in a truncated
proceeding, usually without the benefit of discovery, id.
§ 16-5502(c), to avoid the toll that meritless litigation
imposes on a defendant who has made a prima facie
showing that the claim arises from advocacy on issues of
public interest.

150 A.3d at 1235. Having recognized that special motions to dismiss usually will

be decided without discovery, we characterized § 16-5502(c) as providing “a

limited exception that favors the defendant.” Id. at 1237. Thus, the language of

§ 16-5502(c) indicates that discovery normally will not be allowed.

This view is supported by the Act’s legislative history. While the vast

majority of jurisdictions with Anti-SLAPP Acts permit a court to order specified

discovery on a showing of “good cause,” see, e.g., Cal. Civ. Proc. Code

§ 425.16(g) (2019), the District of Columbia Council abandoned this language. As

introduced, the bill would have stayed discovery proceedings until the special

motion to dismiss had been disposed of, “except that the court, for good cause

shown, may order that specified discovery be conducted.” D.C. Council, Comm.

On Public Safety and the Judiciary, Report on Bill 18-893 at 2 (July 7, 2010).

During its testimony before the Committee on Public Safety and the Judiciary, the

American Civil Liberties Union of the Nation’s Capital (“ACLU”) cautioned that
 38

the “good cause” standard in the proposed bill “has the disadvantage of being

completely subjective so that a judge . . . can, in effect, set the Anti-SLAPP Act

aside and allow a case to proceed in the usual way.” Anti-SLAPP Act of 2010:

Hearing on Bill No. 18-893 before the Committee on Public Safety and the

Judiciary, Council of the District of Columbia, Statement of Arthur Spitzer, Legal

Director, ACLU at 6 (Sep. 17, 2010). After hearing this testimony, the Committee

added the requirement that the proposed discovery not be unduly burdensome and

replaced the “for good cause shown” test with the requirement that it must appear

“likely that targeted discovery will enable the plaintiff to defeat the motion.”

November Report at 7.

Given the statutory language and this background, we conclude that the

clause “[w]hen it appears likely that targeted discovery will enable the plaintiff to

defeat the motion” creates a standard that is difficult to meet. Discovery must be

“targeted” instead of wide-ranging. A plaintiff seeking discovery must show more

than “good cause,” and he cannot merely argue that the evidence he seeks would

be relevant or helpful. He must be able to articulate how targeted discovery will

enable him to defeat the special motion to dismiss. He also must show that it is

“likely” the discovery will produce that result.
 39

Moreover, given the use of the word “may,” which is “quintessentially

permissive,” the decision to grant or deny targeted discovery rests within the trial

court’s broad discretion. In re J.D.C., 594 A.2d 70, 75 (D.C. 1991). “Discretion

signifies choice.” Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979).

Under the abuse of discretion standard, the trial judge “has the ability to choose

from a range of permissible conclusions.” Id. “The appellate court role in

reviewing ‘the exercise of discretion’ is supervisory in nature and deferential in

attitude.” Id. at 362.

In the trial court, appellants requested targeted discovery to reveal what

appellees “were thinking and doing when they compiled CIR 112 and published it,

and what communications they had with their sources, their contractees and others

regarding the reliability of the information they had gathered.” Judge Epstein

denied this request, reasoning that appellants had not “shown a likelihood that

[appellees] have information that will establish actual malice by clear and

convincing evidence.” He cautioned, and we agree, that if courts relied solely on

the premise that the defendants would have better access to what was in their

minds at the time of publication, “discovery would be justified in every Anti-
 40

SLAPP Act case.” However, as we have shown, it was the legislature’s intent that

discovery ordinarily would not be permitted.

Appellants’ request for discovery does not necessarily raise concerns of

undue burden. However, they have not shown that it “appears likely” that

information gained from deposing appellees will enable them to defeat the special

motion to dismiss. The key issue in this case is whether appellants can prove that

CIR 112 was published with actual malice. 9 As we have discussed at some length,

the fact that Steele did not name his confidential source in CIR 112, the claim that

he was biased because of the nature of his engagement, and the selective

quotations from the news article do not support an inference of actual malice.

Appellants have not shown why discovery will likely produce evidence more

persuasive than what we have rejected. It was not an abuse of discretion to deny

targeted discovery.

9
Appellants also assert that targeted discovery would allow them to
establish that the controversy “giving rise to” the publication of CIR 112 “was not
the controversy identified by the Superior Court.” They claim that if appellees
were deposed, they may “acknowledge that an interest in the ‘Trump-Russia’
question gave rise to the creation and publication of CIR 112.” However, as we
have discussed above, the controversy must have existed prior to the defamation,
and identifying the motivation for publishing is not the same as defining the
controversy. Appellants have not shown that discovery targeted in this manner
likely would enable them to defeat the special motion to dismiss.
 41

III. Conclusion

For the reasons discussed above, we affirm the judgment of the Superior

Court which granted appellees’ special motion to dismiss.