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Case 3:22-cv-01101-WHA Document 58-1 Filed 09/01/22 Page 1 of 16
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`
`MILBERG COLEMAN BRYSON
`PHILLIPS GROSSMAN, PLLC
`DAVID E. AZAR (SBN 218319)
`280 S. Beverly Drive, Suite PH
`Beverly Hills, California 90212
`Telephone: 1-866-252-0878
`dazar@milberg.com
`
`Attorney for Plaintiff JFF Publications LLC,
`d/b/a JustFor.Fans
`
`8/23/2022
`
`JFF PUBLICATIONS LLC, d/b/a
`JustFor.Fans, on behalf of itself and all
`others similarly situated,
`
`
`
`SUPERIOR COURT FOR THE STATE OF CALIFORNIA
`COUNTY OF SAN MATEO
`
` Case No. 22-CIV-00782
`
`PLAINTIFF’S REPLY TO DEFENDANTS’
`OPPOSITIONS TO PLAINTIFF’S
`MOTION FOR LEAVE TO CONDUCT
`DISCOVERY TO OPPOSE EACH OF THE
`ANTI-SLAPP MOTIONS
`
`Date: September 9, 2021
`Time: 2:00 p.m.
`Dept.: 21 (Hon. Robert D. Foiles)
`
`
`Plaintiff,
`
`
`
`
`
`
`vs.
`FACEBOOK OPERATIONS, LLC,
`LEONID RADVINSKY, FENIX
`INTERNATIONAL INC., META
`PLATFORMS, INC., INSTAGRAM, LLC,
`FENIX INTERNET LLC, and
`JOHN DOES 1-10,
`
`
`
`
`
`
`Defendants.
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`
`TABLE OF CONTENTS
`
`INTRODUCTION ...........................................................................................................................1
`
`ARGUMENT ...................................................................................................................................2
`
`I. Plaintiff’s Request for Discovery Is Necessary to Address Meta’s Section
`230 Defense ...................................................................................................................3
`
`
`
`II. Plaintiff Requires Discovery to Defend Against Meta’s First Amendment
` Defense ..........................................................................................................................7
`
`III. Plaintiff’s Motion is Proper ...........................................................................................8
`
`IV. Plaintiff’s Motion Properly Seeks Limited Discovery from the Fenix
` Defendants .....................................................................................................................9
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`CONCLUSION ..............................................................................................................................10
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`
`TABLE OF AUTHORITIES
`
`Cases
`
` Page(s)
`
`Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016) ....................................................... 4, 5
`Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040 (2019) ....................... 6
`Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157
` (9th Cir. 2016) ......................................................................................................................... 3
`Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021) .................................................................... 4
`Nat’l Soc. of Prof’l Eng’rs v. United States, 435 U.S. 679 (1978) ............................................ 3, 7
`
`Statutes
`
`47 U.S.C. § 230 .............................................................................................................................. 8
`Cal. C.C.P. § 425.16 .............................................................................................................. 2, 3, 9
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`
`INTRODUCTION
`Plaintiff believes that discovery may be necessary if the Court gets to step 2 of the anti-
`SLAPP analysis because CDA Section (c)(1) does not apply, therefore there is no absolute
`immunity. If Section 230 applies to this lawsuit at all – and Plaintiff does not concede it does, or
`that this case even falls within the scope of the SLAPP statute – the applicable provision is (c)(2),
`which has a requirement of “good faith.” By definition, designating organizations as terrorist
`organizations in return for a bribe is not good faith under any of the case law or normal meaning
`of that term.
`Meta’s argument (adopted by Fenix Defendants) shows why Plaintiff addressed Section
`(c)(2) in earlier-filed papers, even though Meta moved for dismissal only under (c)(1). Section
`(c)(1) applies only to decisions by platforms to publish or not publish the content of others. That
`section reads in its entirety, “[n]o provider or user of an interactive computer service shall be
`treated as the publisher or speaker of any information provided by another information content
`provider.” Meta ignores that Plaintiff does not accuse it of wrongdoing as a third-party platform.
`Rather, it is Meta’s own content at issue – its private designation of organizations on an internal
`list of dangerous individuals and organizations, which involves unique consequences and is far
`different than merely deciding that certain content is not allowed on their own websites. That is
`why if Meta wants to assert CDA protection, it must depend on Section (c)(2), which has the good
`faith element that Meta obviously cannot meet. If Meta disclaims any (c)(2) argument, then it
`loses the CDA argument entirely.
`Further, even as to (c)(1), it cannot be the case that Congress intended the CDA to mean
`that Meta’s employees can take private bribes to add innocent businesses to a terror list to help one
`business over another, while Meta is absolutely immune from any responsibility it might otherwise
`have under the law (and immune under every possible factual scenario so that the case ends on a
`demurrer without discovery). That interpretation is not only beyond the plain language of the CDA,
`but it also violates principles of textual interpretation. Such an interpretation would result in no
`limits on liability under (c)(1) and would therefore obviate the (c)(2) provision and swallow it
`whole. Put simply, the distinction is that Section (c)(1) protects internet service providers from
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`liability for content others place on their website (i.e., for the content itself); Section (c)(2) protects
`internet service providers from liability for blocking or removing material that others place on
`their website, provided the removal or blocking was done in good faith.
`Plaintiff maintains that if the Court finds the anti-SLAPP statute is applicable at all under
`Step 1, there will likely be the need for discovery under Step 2, to determine whether Meta acted
`in good faith when its employees’ accepted bribes in return for including Plaintiff (and its partner-
`publishers) on the terror list.
`As to the Fenix Defendants, their anti-SLAPP motion specifically challenged Plaintiff’s
`claims under the Step 2 of § 425.16, thus making them subject to Plaintiff’s present Motion for
`Leave to Conduct Discovery. Fenix Br. at 3 (Plaintiff’s “claims are not legally sufficient or
`factually substantiated for the reasons outlined in the Fenix Defendants’ concurrently filed
`demurrer and motion to quash”). Fenix Defendants cannot avail itself of immunity under the CDA
`or First Amendment for the reasons stated against Meta, along with extra hurdles that prevent them
`from piggybacking on Meta’s position since they are in a structurally different position. To the
`extent that Fenix Defendants possibly could assert an anti-SLAPP, discovery is warranted.
`ARGUMENT
`This case is about anti-competitive conduct. Plaintiff’s allegations do not implicate Meta’s
`ability to regulate content on its platform or its First Amendment rights – or those of the Fenix
`Defendants. Despite this, Defendants have filed anti-SLAPP motions claiming immunity under
`Section 230 of the CDA and the First Amendment. Plaintiff has no means to oppose some of the
`assertions Defendants make in their anti-SLAPP motions absent discovery. It follows that Plaintiff
`has good cause under § 425.16(g) to pursue discovery to determine whether Defendants are
`engaging in anti-competitive conduct, as clearly and sufficiently pled in the Complaint, and
`whether either are acting as a publisher under the First Amendment or Section 230(c)(1). We
`focus on Meta’s position first, since Fenix Defendants join it, and then address Fenix in the last
`section, along with details of some of discovery requested in the moving papers.
`If Meta’s sweeping position were correct, then it would be able insulate itself, for example,
`from civil violations of the Sherman Act, which was certainly not Congress’ intent when it passed
`
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`the CDA. Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157, 1164
`(9th Cir. 2016) (“The [CDA] was not meant to create a lawless no-man’s-land on the Internet.”).
`Nor is it consistent with federal case law that consistently holds that the First Amendment is not a
`defense for anti-competitive conduct. Nat’l Soc. of Prof’l Eng’rs v. United States, 435 U.S. 679,
`697 (1978).
`Meta has not raised “purely legal defenses” (Def. Br. at 3); instead, it states that Plaintiff’s
`claims are “factually unsubstantiated” under Step 2 of § 425.16 and repeatedly references materials
`outside of the Complaint. See Meta Mot. at 8-9, 20. That is an argument about the merits/causes
`of action beyond the CDA and First Amendment, and opens the door to limited discovery to the
`extent the Court find that Plaintiff’s evidentiary showing fails to satisfy its Step 2 burden, including
`as to topics summarized infra at Sections III and IV (and accompanying footnotes, with excerpts
`from the Hochman expert declaration).
`Accordingly, Plaintiff requests “limited discovery to meet its Step 2 burden as to each of
`Defendants’ First Amendment argument, their Section 230 argument, and any challenge to
`Plaintiff’s causes of actions that are incorporated into their anti-SLAPP motions.” Mot. at 12. As
`shown below, Defendants’ oppositions to Plaintiff’s motion is without merit, and the Court should
`enter an order allowed for such limited discovery.
`
`I.
`
`Plaintiff’s Request for Discovery Is Necessary to Address Meta’s Section 230 Defense.
`
`As discussed in Plaintiff’s response to Meta’s anti-SLAPP motion, Meta cannot claim
`immunity under Section 230(c)(1) because Plaintiff is challenging Meta’s anti-competitive
`conduct, not Meta’s dissemination of content posted by Meta users. See Mot. at 7. Plaintiff now
`requests limited discovery to determine whether Meta designated individuals and entities or
`content identified as belonging to certain individuals or entities, who are not terrorists, on its
`internal list of Dangerous Individuals and Organizations. Id. at 9.
`Meta takes great pains to stress that it is only arguing immunity under Section 230(c)(1) as
`opposed to (c)(2), and for good reason: any argument that its content-related actions were made in
`good faith under (c)(2) would immediately invite discovery into Meta’s “good faith” actions.
`Despite its protests, Meta’s conduct falls squarely within the confines of (c)(2), which protects
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`websites from “any action voluntarily taken in good faith to restrict access to or availability of
`material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively
`violent, harassing, or otherwise objectionable” (emphasis added). But regardless of whether Meta
`is seeking immunity under Section 230 (c)(1) or (c)(2), Plaintiff is entitled to limited discovery.
`Section 230 (c)(1) “protects websites from liability for material posted on the website by
`someone else.” Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016). As stated in
`Plaintiff’s opposition brief, Plaintiff alleges that Meta improperly placed non-terrorist
`businesses that compete with OnlyFans on its internal Dangerous Individuals and
`Organizations list (DIO). Amended Hochman Decl. at ¶9. That had the downstream result of
`automatically adding non-terrorist content providers to those competitor websites to part of the
`internal Meta DIO list (as a terrorist sympathizer), which then had further downstream effects.
`Amended Hochman Decl. at ¶¶ 9-12, 56-62 & n.1. The subsequent use of that information by the
`AI system to harm the competing platforms and performers, as a downstream effect, is a form of
`damages; it is not the content itself at issue, and not the publishing at issue. It is well established
`that speech can be evidence without implicating publisher protections, as discussed in Section II
`of Plaintiff’s anti-SLAPP opposition brief (e.g., the “arising from” discussion, citing Wilson v.
`Cable News Network, Inc. and Navellier v. Sletten).
`Accordingly, it is Meta’s conduct and its own content (i.e., placing non-terrorists on its
`internal DIO list) that is at issue, not third-party posts on Meta’s website. That makes Section
`230(c)(1) unavailable. Lemmon v. Snap, Inc., 995 F.3d 1085, 1093 (9th Cir. 2021) (because
`plaintiff “‘seek[s] to hold Snapchat liable for its own conduct, principally for the creation of the
`Speed Filter,’ § 230(c)(1) immunity is unavailable.”) (internal citation omitted).1
`The fact that Meta also regulates third-party content on its website (where Section (c)(1)
`may apply) is incidental and irrelevant to Plaintiff’s particular allegations. It is not the gravamen
`
`
`1 Put differently, it is Meta’s/Facebook’s act of falsely designating that is at issue, along with any
`communication involving that act. It is not the speech of third-party users that is at issue, so there
`is no 230(c)(1) protection. Analogy: John D. Rockefeller monopolized petroleum by acquiring all
`of the oil refineries. His actions did not fall into the scope of some free speech protection that is
`immunized simply because he had the right to speak words or entered into written contracts to
`carry out these wrongful anticompetitive acts. The speech is incidental to the wrongdoing.
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`of the complaint. And it reflects backwards reasoning like the Internet Brands case involving the
`models who were raped. Opp. at 8-9 (Jane Doe No. 14 v. Internet Brands, Inc., 824 F.3d. 846 (9th
`Cir. 2016)). The company there, Internet Brands, essentially said, “you are tagging us with liability
`because we didn’t monitor and take down postings by the rapists, and that falls within Section
`(c)(1).” The Ninth Circuit said, no, we are tagging you with liability because you did not warn
`possible victims despite being aware of misuse of the site. Same here: Plaintiff is accusing Meta
`of knowing that people were being falsely designated as terrorists (and of participating in that false
`designation), and Meta or its employees did this to victimize platforms that competed with
`OnlyFans and their users. Whether Meta allowed something created by a user to be published, or
`Meta took something down that was created by a user, is irrelevant to this case. The legal duty
`that is being sued over is the suppression of competition, not editorial choices to allow or disallow
`particular postings by third parties.2
`Accordingly, Plaintiff requests discovery to determine “[w]hether Meta and its employees
`and agents created the content (i.e., the identification of Plaintiff and others not involved in
`terrorism or other dangerous activities) Plaintiff alleges is unlawful, rather than third parties.” Mot.
`at 12. If Plaintiff confirms that supposition through discovery, Meta will be unable to claim the
`protection of Section 230(c)(1), which is central to its anti-SLAPP motion.
`The same logic applies to Section 230(c)(2). That subsection protects websites from “any
`action voluntarily taken in good faith to restrict access to or availability of material that the
`provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing,
`or otherwise objectionable.” Plaintiff’s allegations – that Meta improperly restricted links by
`content providers to its platform and those of the putative class by misclassifying them as terrorist
`
`
`2 Another way to distinguish Meta’s argument is by an analogy to the Food Lion litigation of 25
`years ago. ABC News planted people in the deli departments at grocery stores. ABC broadcast
`reports about old meat with false sell-by dates and dangerous potato salad. Food Lion sued, and
`won, on the theory that ABC’s moles lied on their applications (by not disclosing that they were
`reporters) to get their jobs. Liability existed whether or not ABC ever broadcast anything about
`Food Lion. The liability arose from the acts undertaken in collecting the information used for the
`news report. Courts draw this distinction all the time in invasion of privacy claims – it is the act
`of invading the victim’s private place or taking the victim’s private information that gives rise to
`liability. The later publication or use of that information is considered in determining damages.
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`organizations – seems to squarely fit within that category of protected conduct. However, Section
`230(c)(2) does not protect websites that do not act in “good faith,” including those that block or
`remove content based on anti-competitive animus. See Enigma Software Group USA, LLC v.
`Malwarebytes, Inc., 946 F.3d 1040, 1051 (2019) (declining to extent Section 230(c)(2) immunity
`to anti-competitive conduct and stating that such conduct directly conflicted with Congress’
`express intent in enacting the CDA).
`Meta bends backwards to insist that it is not arguing for Section 230(c)(2) immunity,
`obviously because a “good faith” defense would squarely rest on information solely in Meta’s
`possession, thus requiring discovery from Meta. Notwithstanding Meta’s characterization of its
`defense, discovery is still required. Under either its First Amendment or CDA defense, Plaintiff
`is entitled to learn whether Meta itself was responsible for improperly designating entities and
`people that have nothing to do with terrorism, on its own DIO list, and then reporting some of
`their content to the GIFCT hash database. Mot. at 12-13; Amended Hochman Decl. cited and
`excerpted infra at Sections III and IV. Additionally, if Meta did engage in such activities, Plaintiff
`requires discovery to determine whether such actions were made in good faith. Mot. at 13.
`Meta’s arguments against granting Plaintiff limited discovery are unavailing. The types of
`discovery requested by Plaintiff directly bear on the defenses raised in Meta’s anti-SLAPP motion.
`Ultimately, Plaintiff’s proposed discovery focuses on Meta’s knowledge of the alleged anti-
`competitive scheme, which would be dispositive in its anti-SLAPP motion. To illustrate this issue,
`consider the plaintiff in Internet Brands, Inc., who alleged that the defendant “fail[ed] to warn her
`about information it obtained from an outside source about how third parties targeted and lured
`victims.” 824 F.3d at 851. The Ninth Circuit held that Section 230(c)(1) did not bar the plaintiff’s
`claims because “Section 230(c)(1) bars only liability that treats a website as a publisher or speaker
`of content provided by somebody else.” Id. In that case, the defendant’s knowledge created a duty
`to warn, and that knowledge is only attainable through discovery. If the Court were to accept
`Meta’s argument here, a plaintiff would necessarily have to have all relevant facts (including those
`about a defendant’s knowledge) in its possession in order to avoid dismissal as a matter of law
`under Section 230(c)(1). By granting Plaintiff’s motion, the Court can avoid such a result here.
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`Plaintiff emphasizes that this case bears on Meta’s alleged anti-competitive conduct, not
`on its role as a publisher of user content. Meta should not be permitted to claim immunity under
`Section 230 in this case as it typically can, and does, against state law causes of action such as
`defamation and invasion of privacy. Whether Meta stylizes its defense under Section 230(c)(1) or
`(c)(2) is irrelevant, because Plaintiff still requires discovery into Meta’s knowledge of the anti-
`competitive scheme to properly defend against its anti-SLAPP motion.
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`II.
`
`Plaintiff’s Requires Discovery to Defend Against Meta’s First Amendment Defense
`
`Plaintiff’s request for limited discovery is also necessary to address Meta’s First
`Amendment defense. It is well established that the First Amendment is not absolute and does not
`protect against the anti-competitive conduct alleged in the Complaint. Nat’l Soc. of Prof’l Eng’rs
`v. United States, 435 U.S. 679, 697 (1978). Meta argues, without support, that the alleged conduct
`was not anti-competitive but “unquestionably editorial.” Def. Br. at 7. As initial matter, that
`argument directly conflicts with Meta’s Section 230(c)(1) argument because it shows how the
`alleged conduct is related to suppression of content under (c)(2), not Meta’s role in hosting third
`party content under (c)(1). However, to the extent that the alleged conduct involves Meta’s
`“editorial” role, discovery is needed.
`Meta makes two arguments: (1) its alleged conduct was “editorial” and thus protected
`under the First Amendment and the CDA; and (2) Plaintiff cannot seek discovery to rebut that
`argument. Essentially, Meta is asking the Court for summary judgment on Plaintiff’s claims while
`also attempting to deny Plaintiff the means to oppose summary judgment. For example, Meta states
`that Plaintiff’s “allegations that adult performers’ content was removed, or its visibility suppressed
`are likewise best explained by Meta’s enforcement of its Community Standards.” That is a strict
`Section 230(c)(2) argument and a factual assertion of Meta’s state of mind outside of the
`allegations contained in the Complaint. How can Plaintiff rebut that defense without discovery?
`Documentary evidence in Meta’s control will demonstrate why Meta removed or blocked content
`belonging to some adult performers and not others. Meta has put these facts at issue, and Plaintiff
`is entitled to discover the basis of those anti-SLAPP arguments. (In the meantime, Plaintiff notes
`that the Complaint, Aaronson Declaration and the expert report respond to that point about Meta’s
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`enforcement of community standards by noting that (1) OnlyFans and a related adult web site
`owned by Defendant Radvinsky (MyFreeCams) were not similarly affected, even though they have
`similar content and performers linking to them; and (2) there is no benign explanation for that
`different treatment. Thus, if Meta was just enforcing its Community Standards, OnlyFans and
`Radvinsky’s other adult sites should have been similarly affected, but the Complaint alleges that
`they were not, and Plaintiff’s available evidence backs that up). E.g., Complaint at 11, 41, 51, 54,
`59, 78, 110 (Radvinsky-affiliated); Aaronson Decl. ¶11; e.g., Amended Hochman Decl. ¶¶ 19, 80.
`
`III.
`
`Plaintiff’s Motion is Proper
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`Plaintiff’s Motion has been properly brought before this Court. In support of its Motion,
`Plaintiff listed several discrete types of discovery that it requires to defend itself against Meta’s
`anti-SLAPP motion. Some of discovery directly relate to the defenses Meta has raised under 47
`U.S.C. § 230(c)(1) and the First Amendment because it relates to Meta’s role as a “publisher” and
`whether its conduct was “editorial” or, as Plaintiff alleges, anticompetitive. Plaintiff’s Motion also
`incorporates the Declaration of Jonathan E. Hochman, who identifies the same topics and why
`limited discovery into those topics is necessary to defend against Met’s anti-SLAPP suit. Mot. at
`12; Am. Hochman Decl. ¶¶ 62, 103-107. Plaintiff identified the categories and some examples of
`the needed discovery in its moving papers and indicated that certain other discovery relating to
`technical or merits issues was best addressed in a meet and confer and/or with the help of a
`technical special master. That reflects a good faith effort to proactively narrow the scope of
`discovery and determine if agreements can be reached, without requiring further judicial
`intervention. E.g., Am. Hochman Decl. ¶ 1023. Counsel for Plaintiff and Meta had a productive
`
`3 “102. The most important data that I have not yet seen, and would like to see, are the designations
`applied, including but not limited to the threat indicators submitted to the systems, applications,
`and processes utilized by Facebook and by Meta staff when actioning content on the Instagram
`platform associated with JustFor.Fans, FanCentro, and several other platforms used by putative
`class members to post content, including LiveJasmin, Chaturbate, Bongacams, Clip4sale,
`Manyvids, Modelcentro, Celebtv, Camversity, Camster, Camdolls, and all Mindgeek variants,
`including but not limited to its own internal systems, the Threat Exchange or GIFCT Hash Sharing
`Database, during the time period October 1, 2017 to the present, as outlined at points in this
`Declaration and will be further described after what I understand will be efforts to meet and confer
`with Defendants. I start at October 1, 2017, instead of the October 2018 date in the complaint as
`to when Radvinsky purchased OnlyFans, in order to obtain approximately 1 year of data for the
`(footnote continued)
`
`8
`PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO
`CONDUCT DISCOVERY TO OPPOSE ANTI-SLAPP MOTIONS
`
`
`
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`

`

`Case 3:22-cv-01101-WHA Document 58-1 Filed 09/01/22 Page 12 of 16
`
`initial meet and confer session on the day Meta filed its Opposition, so Meta’s expressed position
`lacked the benefit of that discussion. Plaintiff is waiting to hear back from Meta, and believes its
`approach of identifying certain categories of requested discovery in its moving papers (thus
`meeting any threshold requirement, if one exists), and then having a private conversation to meet
`and confer about additional specifics to determine if common ground could be reached, was
`appropriate --contrary to Meta’s conclusory assertion to the contrary, made without explanation.
`Accordingly, this discovery, subject to the Court’s order and possible modification, properly
`addresses Meta’s anti-SLAPP defenses.
`
`IV.
`
`Plaintiff’s Motion Properly Seeks Limited Discovery from the Fenix Defendants
`
`Plaintiff’s Motion states that “Plaintiff seeks limited discovery to meet its Step 2 burden as
`to each of Defendants’ First Amendment argument, their Section 230 argument, and any challenge
`to Plaintiff’s causes of actions that are incorporated into their anti-SLAPP motions.” Mot. at 12
`(emphasis added). In their anti-SLAPP motion, Fenix Defendants specifically challenged
`Plaintiff’s claims under the Step 2 of § 425.16, thus making them subject to Plaintiff’s present
`Motion for Leave to Conduct Discovery. Fenix Br. at 3 (Plaintiff’s “claims are not legally
`sufficient or factually substantiated for the reasons outlined in the Fenix Defendants’ concurrently
`filed demurrer and motion to quash”). For the same reasons stated as to Meta, Fenix cannot avail
`itself of immunity under the CDA or First Amendment. To the extent that it possibly could,
`discovery is warranted.
`Further, as stated in Plaintiff’s opposition to the Fenix anti-SLAPP motion, the Fenix
`Defendants cannot piggyback on Meta’s (c)(1) arguments because they do not meet the statutory
`definitions (e.g., they are not acting as a platform as to the allegations against them). Section (c)(1)
`states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or
`speaker of any information provided by another information content provider.” Here, Plaintiff’s
`allegations do not concern information on the OnlyFans platform – i.e., Plaintiff does not allege
`that Fenix was provided information by another content provider that Fenix put on its OnlyFans
`
`
`pre-conspiracy period (and because it is possible the scheme was tested or started earlier than the
`closing of the purchase, based on the inference that negotiations started well before then).”
`
`9
`PLAINTIFF’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO
`CONDUCT DISCOVERY TO OPPOSE ANTI-SLAPP MOTIONS
`
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`

`Case 3:22-cv-01101-WHA Document 58-1 Filed 09/01/22 Page 13 of 16
`
`platform. Thus, to the extent the anti-SLAPP protection applies as well to the Fenix Defendants
`(it does not), the Fenix Defendants’ only Step 2 argument pertains to merits issues, and limited
`discovery is appropriate as to them (to the extent the Court finds Plaintiff’s evidentiary showing
`insufficient). See, e.g, Amended Am. Hochman Decl. ¶ 102 (supra at note 3); see also id. at ¶ 384,
`515, 656, & 817.
`
`CONCLUSION
`For the foregoing reasons, the Court should grant Plaintiff’s motion for leave to conduct
`discovery to oppose Defendants’ anti-SLAPP motions.
`
`
`
`
`4 “38. Therefore, relevant data sought by Plaintiffs are within the Meta Defendants’ possession,
`custody, or control. To the extent that the Meta Defendants maintain any system, data, or processes
`which provide information responsive to Plaintiffs’ discovery requests, but which Facebook/Meta
`contends are not contained within, or are not accessible by, or are not labeled as a part of the
`GIFCT Hash Sharing Database or the Facebook Threat Exchange, I am nonetheless seeking the
`same information about those platforms, processes, or systems pertaining to these requests as
`well.” (Emphasis added).
`5“51. Every Threat Indicator submission a GIFCT or Threat Exchange member makes is
`associated with this App ID, and each such submission has its own “indicator ID” that cannot be
`edited or changed.

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