1

5 IN THE CIRCUIT COURT OF THE STATE OF OREGON

6 FOR THE COUNTY OF MULTNOMAH

7 CIDER RIOT, LLC; and ABRAM ) Case No. 19CV20231

GOLDMAN-ARMSTRONG, )
8 ) PLAINTIFFS’ MOTION FOR LIMITED
Plaintiffs, ) DISCOVERY PURSUANT TO ORS
9 ) 31.152(2)
v. )
10 ) Expedited Hearing Requested
PATRIOT PRAYER USA, LLC; JOSEPH )
11 “JOEY” GIBSON; IAN KRAMER; and JOHN ) Anti-SLAPP motions currently set for
DOES 1-25, ) hearing on September 20, 2019
12 )
Defendants. ) Hon. Andrew M. Lavin, motions judge
13 )
)
14 )

15

16 CONFERRAL STATEMENT

17 Counsel for the parties have conferred concerning this motion. Defendants oppose the

18 motion. However, the parties agree that briefing on the anti-SLAPP motion should be held in

19 abeyance pending the outcome of this motion. In the event the Court denies Plaintiffs’ discovery

20 motion, Plaintiffs agree that they will respond to the anti-SLAPP motion within two court days.

21 If the Court grants the discovery motion, then the Court will set new deadlines for the anti-

22 SLAPP briefing.

23 MOTION FOR LIMITED DISCOVERY (ORS 31.152(2))

24 The Multnomah County District Attorney has indicted defendant Joey Gibson for riot, in

25 violation of ORS 166.015, based on his role in the May 1, 2019 violence at plaintiffs’

26

Page 1 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 establishment. (Ex. 1 at 1.) 1 As evidenced by the indictment, law enforcement and a grand jury

2 have determined “that there is a substantial objective basis for believing that more likely than not

3 an offense has been committed and a person to be arrested [in this case, Gibson] has committed

4 it.” ORS 131.005(11) (defining “probable cause”).

5 In direct contradiction of law enforcement, whom Patriot Prayer otherwise purports to

6 respect and support, Gibson claims that the charges against him are “a shame” because they are

7 “political” and not based on anything he did on May 1. (Ex. 2.) Likewise, Gibson asserts in his

8 anti-SLAPP motion that he was not involved in the coordination or planning of the violence at

9 Cider Riot on May 1, 2019.

10 Assuming solely for purposes of this discovery motion that Gibson and Patriot Prayer have

11 satisfied their burden of showing that the anti-SLAPP statute applies, 2 the Court should find that

12 there is good cause to grant plaintiffs leave to conduct limited discovery pursuant to ORS

13 31.152(2). The Court should grant the motion because plaintiffs bear the burden of adducing

14 admissible evidence that Gibson was involved in the May 1, 2019 violence; plaintiffs need the

15 opportunity to present admissible evidence of Gibson’s and Patriot Prayers’ role in the May 1,

16 2019 violence—evidence in the hands of defendants and other entities, such as Facebook,

17 YouTube and public entities; and the discovery plaintiffs seek is limited to this discrete issue.

18 This motion is, and will be, based on this motion, the following memorandum, the

19 declaration of Clifford S. Davidson and exhibits thereto, the Court’s file, matters subject to judicial

20 notice, and any evidence or argument presented at the hearing on this motion.

21 MEMORANDUM

22 Although the filing of an anti-SLAPP motion stays discovery, the Court may order

23 1
The Court (Bushong, J.) has sealed the indictment because there is an ongoing investigation. (See
24 Ex. 1 at 2-3.) What is public is that the charge is for riot in violation of ORS 166.015 (see Ex. 1 at
1), and that Gibson acknowledges having been charged. (See Ex. 2.)
25 2
He has not. The conduct in which he engaged on May 1, 2019 is illegal as a matter of law and
26 therefore not protected by the anti-SLAPP statute. See Deep Photonics Corp. v. LaChapelle, 282
Or App 533, 545 (2016).
Page 2 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 specified discovery for good cause:

2 “All discovery in the proceeding shall be stayed upon the filing of a

3 special motion to strike under ORS 31.150. The stay of discovery

4 shall remain in effect until entry of the judgment. The court, on

5 motion and for good cause shown, may order that specified

6 discovery be conducted notwithstanding the stay imposed by this

7 subsection.”

8 (ORS 31.152(2) [emphasis added].)

9 No appellate-level Oregon courts have addressed the “good cause” requirement, so this

10 Court may look to California authorities interpreting that state’s identical provision. See Cal. C.

11 Civ. P. § 425.16(g) (“The court, on noticed motion and for good cause shown, may order that

12 specified discovery be conducted notwithstanding this subdivision.”) 3 According to those

13 authorities, a plaintiff demonstrates “good cause” for discovery when the plaintiff shows “that a

14 defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.” 1-800

15 Contacts, Inc. v. Steinberg, 107 Cal App 4th 568, 593 (Cal Ct App 2003), rev. denied July 9, 2003.

16 “The showing should include some explanation of what additional facts plaintiff expects to

17 uncover.” Id. (internal quotations and citations omitted); see Sipple v. Foundation for Nat.

18 Progress, 71 Cal App 4th 226, 247 (Cal Ct App 1999), rev. denied July 28, 1999 (so holding, two

19 years prior to enactment of Oregon anti-SLAPP statute).

20 Through document discovery from, and depositions of, Gibson, other defendants, and of

21 adherents of Patriot Prayer, as well as documents subpoenaed from non-parties Facebook, 4chan,

22 8chan, Twitter, YouTube, Telegram, Discord, Portland Police Bureau, Multnomah County,

23 members of the Proud Boys, and defendants’ phone carriers, plaintiffs anticipate gathering prima

24
3
25 Where the relevant wording of the Oregon and California anti-SLAPP laws are identical, Oregon
looks to California decisions, dated prior to Oregon’s 2001 enactment of its statute, for controlling
26 interpretation, and to post-2001 cases “only for their persuasive value.” Handy v. Lane Cnty., 360
Or 605, 619 (2006).
Page 3 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 facie evidence that defendants, or any of them, coordinated or participated in the violent acts

2 perpetrated on May 11, 2019. It is beyond question that those violent acts occurred.

3 Furthermore, publicly-available information suggests that discovery would lead to

4 evidence concerning Gibson’s involvement in the violent events of May 11, 2019. Publicly-

5 available text messages, which the Portland Police Bureau sent and received specifically because

6 of Gibson’s role in coordinating past demonstrations that have become violent, demonstrate a

7 pattern and practice of his control over the activities and movements of Patriot Prayer. (See

8 Davidson Decl. ¶ 4). 4 The State’s indictment indicates that there is probable cause to believe that

9 Gibson coordinated or participated in the violent acts affecting plaintiffs on May 1, 2019. (Ex. 1.)

10 And, at least two YouTube videos indicate that individuals who committed violence against

11 patrons of Cider Riot coordinated with Gibson. The videos are available at

12 https://youtu.be/WTXAYSIzKps (“Video 1”), https://youtu.be/Qbs-fog4Q1M (“Video 2”),

13 https://youtu.be/awN9J88j4mA (“Video 3”), and https://youtu.be/HzId89utLys (“Video 4”). In

14 Video 2, at 25:53 through approximately 26:50, the group discusses going to Cider Riot. An

15 individual on the video states that Gibson told him that Gibson is going to Cider Riot and agrees

16 that backup is necessary.

17 Video 3 is replete with relevant examples of Gibson’s involvement with the violent acts at

18 Cider Riot:

19 • At 4:00, the group discusses when Gibson (“Joey”) is coming and asking who has

20 been texting with him.

21 • At 6:40, someone says “Tell Joey and them to hurry the fuck up. I hope they got

22 like 10 big dudes with them.”

23 • At 12:27, someone says “Joey’s coming.”

24 • At 16:15, someone asks where “Joey” said to meet.

25
4
26 The text messages are voluminous and therefore not included with this motion. If the Court
desires that the messages be filed, the plaintiffs are happy to do so.
Page 4 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 • At 17:35, the group speaks with someone on speakerphone, coordinates that

2 person’s arrival, and notes that there will be a fight at Cider Riot.

3 (Davidson Decl. ¶ 5.)

4 Plaintiffs must present the foregoing evidence, and other evidence in support of plaintiffs’

5 prima facie showing, in admissible form. Young v. Davis, 259 Or App 497, 508 (2013). In order

6 to do so, plaintiffs must obtain testimony, and gather information, from those who can lay an

7 evidentiary foundation or authenticate documents. For this reason, and as the California Court of

8 Appeal noted in an authoritative opinion, the Court must liberally exercise its discretion and grant

9 the specified discovery requested here:

10 “If the plaintiff makes a timely and proper showing in response to

11 the motion to strike, that a defendant or witness possesses evidence

12 needed by plaintiff to establish a prima facie case, the plaintiff must

13 be given the reasonable opportunity to obtain that evidence through

14 discovery before the motion to strike is adjudicated. The trial court,

15 therefore, must liberally exercise its discretion by authorizing

16 reasonable and specified discovery timely petitioned for by a

17 plaintiff in a case such as this, when evidence to establish a prima

18 facie case is reasonably shown to be held, or known, by defendant

19 or its agents and employees.”

20 Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 37 Cal App 4th 855, 868 (Cal Ct App 1995),

21 rev. denied Nov 30, 1995. 5

22 CONCLUSION

23 There is good cause for the Court to exercise its sound discretion to permit discovery—

24 from defendants and non-parties—into the participation of Gibson and Patriot Prayer in the events

25 of May 1, 2019. ORS 31.152(2). The Court should grant the motion for discovery, set a schedule

26
5
This 1995 decision is authoritative. See Handy, 360 Or at 619.
Page 5 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 for said discovery to be conducted, and set a briefing schedule for the remaining anti-SLAPP

2 briefing.

3 Dated this 21st day of August, 2019.

4 SUSSMAN SHANK LLP

5
By s/ Clifford S. Davidson_________________
6 Clifford S. Davidson, OSB No. 125378
cdavidson@sussmanshank.com
7
Attorneys for Plaintiffs
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Page 6 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130
 1 CERTIFICATE OF SERVICE

2 I certify that on August 21, 2019, I caused to be served, by U.S. Mail and email, a full and

3 correct copy of the foregoing PLAINTIFFS’ MOTION FOR LIMITED DISCOVERY

4 PURSUANT TO ORS 31.152(2) to the interested parties of record, addressed as follows:

5 James L Buchal
6 Murphy & Buchal LLP
3425 SE Yamhill
7 Portland, OR 97214
jbuchal@mbllp.com
8

9 Dated: August 21, 2019

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11
s/ Clifford S. Davidson
12 Clifford S. Davidson, OSB No. 125378
13 (03248068)

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Page 7 – ORS 31.152(2) MOTION; EXPEDITED HEARING REQUESTED

SUSSMAN SHANK LLP, ATTORNEYS AT LAW

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089
TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130