Case Summary and Outcome

The US District Court granted limited discovery and depositions in the defamation case filed by Steve Wynn against Lisa Bloom and the Bloom firm, allowing key individuals’ testimonies while restricting the number of depositions of other individuals to prevent abuse of the anti-SLAPP statute. Wynn sued Bloom for defamation over a press release stating that it constituted libel per se and was published by Bloom and her firm with constitutional malice. The press release contained sexual harassment allegations made by Angelina Mullins in relation to her performance at the entertainment show “Showstoppers”. Bloom filed a Special Motion to Dismiss under Nevada’s anti-SLAPP statute, and to defeat this motion, Wynn filed Motion for Discovery, seeking extensive documents and depositions of over 70 individuals. The court deemed the prospect of over seventy depositions as an extraordinary number and recognised that permitting an undue number of depositions would contravene the intended purpose of the anti-SLAPP statute. While recognizing Wynn’s right to a fair and reasonable opportunity to gather evidence to defeat the motion to dismiss, the court asserted its duty to prevent the abuse of the discovery process for achieving goals contrary to the protective intent of the anti-SLAPP statute.

Facts

Steve Wynn, the plaintiff, a wealthy real estate developer, filed this case against Lisa Bloom and her firm, the defendants, in relation to the letter she sent to his attorneys on March 13, 2018. The letter stated that her firm was representing Ms Angelina Mullins, involving allegations related to her performance at the entertainment show “Showstoppers” at the Wynn Las Vegas Hotel Casino. [p. 1]

The letter further stated that “Ms Mullins was subjected to an unprofessional, demeaning, and sexually objectifying demand: that every single time Mr Wynn came to rehearsal, Ms Mullins was to strip down to a bra and ‘booty shorts’ or panties, freshen her makeup, and wear high-heels. She was required to make every effort to become as sexually pleasing to Mr Wynn as possible. She would then be paraded in front of Mr Wynn either through dancer inspections or through short rehearsals of particularly sexy numbers. Ms. Mullins regularly refused to comply with this demand, and she suffered retaliation for her refusal. We present you this letter in an effort to negotiate a pre-litigation settlement of Ms. Mullins’ legal claims.” [p. 1]

On March 22, 2018, Bloom and her firm issued a public press release entitled “New Woman Accuses Steve Wynn of Sexual Harassment via Attorney Lisa Bloom’. [p. 1] The press release detailed the allegations, emphasizing Mr. Wynn’s unprofessional demands during rehearsals and the humiliation Ms. Mullins experienced. [p. 2]

Wynn’s lawyer sent multiple letters to Bloom demanding a complete retraction of this press release. On April 5, 2018, Bloom issued an updated press release. [p. 2] The press release stated that “[m]y client perceived Mr. Wynn to be looking at the dancers in a way she considered to be leering. Mr. Wynn claims that he was legally blind at the time and thus unable to leer at women. We look forward to finders of fact getting to the truth of this disputed issue.” [p. 3]

On April 5, 2018, Wynn filed a defamation complaint against Bloom, alleging that the statements in the March 22, 2018, press release constituted libel per se and were published by defendants with constitutional malice. [p. 3] On May 5, 2018, Bloom filed a Special Motion to Dismiss under the Nevada Revised Statute (NRS) 41.660.1, known as Nevada’s “anti-SLAPP” statute. [p. 3] The statute provides that “if an action is brought against a person based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern, the person against whom the action is brought may file a special motion to dismiss.”

Furthermore, NRS 41.660.3 states that during this motion, the court is required to determine if the moving party has established that the claim was based upon “good faith communication” in furtherance of the right to free speech. If the moving party meets this initial burden, then the court must determine whether the plaintiff has established by “clear and convincing evidence” a probability of prevailing on the claim. [p. 3]

On January 18, 2019, Bloom’s Special Motion to Dismiss was dismissed without prejudice, noting that Bloom’s deposition was scheduled for January 28, 2019, and that Wynn may need to take additional depositions. Bloom’s deposition was taken on January 28, 2019. Bloom refiled a special motion to dismiss on March 28, 2019. On the scope of additional discovery, the parties did not agree. Therefore,, Wynn filed a Motion for Discovery to respond to Bloom’s Special Motion to Dismiss under NRS 41.660 [p. 3]

Decision Overview

Magistrate Judge George Foley JR. of the United States District Court (Nevada) delivered this ruling. Before the Court, the central issue for consideration was whether Wynn’s Motion for Discovery should be allowed to enable him to respond to Bloom’s Special Motion to Dismiss under the anti-SLAPP statute.

To determine the above-mentioned issue, the Court first noted if an anti-SLAPP motion challenges the factual sufficiency of the plaintiff’s claim, then it must be treated like a motion for summary judgment, and the discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court, as held in Planned Parenthood v. Center for Medical Prog., 890 F.3d 828, 833-34 (9th Cir. 2016) [p. 3] Based on this, the Court observed that Bloom’s anti-SLAPP motion was based on the challenge to Wynn’s assertions that she published press release with “constitutional malice”. [p. 3]

To determine whether Wynn had correctly alleged “constitutional malice” and substantiated a prima facie case of defamation under Nevada law, he must prove (1) a false and defamatory statement by the defendant concerning the plaintiff, (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and actual or presumed damages. [p. 3-4] Further, the court cited Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 668, 109 S.Ct. 2678, 2686 (1989) to observe that “if the plaintiff is a public figure, then the defendant may not be held liable unless actual malice is pleaded and proven”. [p. 3-4]

The Court deemed the prospect of over seventy depositions as an extraordinary number, expressing skepticism about granting approval for such an excessive number of depositions. This hesitation stemmed from the recognition that permitting an undue number of depositions would contravene the intended purpose of the anti-SLAPP statute. [p. 6]  Citing the Nevada Supreme Court’s position in John v. Douglas County School District (125 Nev. 746, 219 P.3d 1276, 1280, 2009), the Court underscored the characterization of a SLAPP lawsuit as “a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.” [p. 5] The Court emphasized that the hallmark of a SLAPP lawsuit is to gain a financial advantage over the adversary by escalating litigation costs until the adversary’s case is weakened or abandoned. [p. 5]

While recognizing Wynn’s right to a fair and reasonable opportunity to gather evidence to defeat the motion to dismiss, the Court asserted its duty to prevent the abuse of the discovery process for achieving goals contrary to the protective intent of the anti-SLAPP statute. [p. 6] Therefore, the Court noted that the deposition of so many individuals was not required to determine whether Bloom failed to investigate Mullins’ claims properly and published the information with actual malice. [p. 6] The Court noted that Bloom had conceded for their motion that the statements in the March 22, 2018 press release were false and, therefore, Wynn was not required to prove the falsity of the press release to defeat the motion to dismiss. [p. 6]

Therefore, the court restricted Wynn from deposing approximately 70 individuals associated with Showstoppers due to their limited relevance to the anti-SLAPP motion. The Court also denied Wynn’s request to depose two unidentified individuals. However, the court allowed Wynn to depose key individuals, including Angelina Mullins, Colt Prattes, Samuel Cahn-Temes, and Lauren Molina, but with a limited time restriction [p. 6]

To conclude, the Court permitted Wynn to take the depositions of Jordan Oslin, Charles Glazer, Esq., Angelina Mullins, Colt Prattes, Samuel Cahn-Temes, and Lauren Molina. [p. 7] The court permitted Wynn to request the production of documents to obtain information related to Bloom’s investigation of the allegations made by Mullins, including any information obtained or received that contradicted or cast doubt on the credibility of Mullins’ allegations. [p. 7] The Court allowed Bloom not to produce documents that they obtained or received about unrelated allegations concerning Wynn. [p. 7]