[Congressional Record Volume 158, Number 117 (Thursday, August 2, 2012)]
[Senate]
[Pages S5983-S5986]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL:
  S. 3493. A bill to protect first amendment rights of journalists and 
internet service providers by preventing States and the United States 
from allowing meritless lawsuits arising from acts in furtherance of 
those rights, commonly called ``Strategic Lawsuits Against Public 
Participation'' or ``SLAPPs'', and for other purposes; to the Committee 
on the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce the Free Press Act. 
The FPA would create a Federal anti-SLAPP statute for journalists, 
bloggers, and other news media, authorizing them to bring a special 
motion to dismiss lawsuits brought against them that arise out of their 
speech on public issues. Once the special motion to dismiss is brought, 
the nonmoving party must present a prima facie case supporting the 
lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and 
fees and costs are awarded to the movant.
  Anti-SLAPP laws effectively make it impossible for frivolous or 
marginal libel lawsuits arising out of protected speech to advance 
beyond an initial stage of litigation. Such laws thereby protect 
journalists and bloggers from the financial impact of defending against 
such suits. Approximately 30 States have anti-SLAPP laws, though their 
coverage varies. There is no federal law. The FPA would create a 
federal anti-SLAPP law, and allow parties to remove some state SLAPP 
claims to Federal court.
  At the conclusion of my remarks today, I will submit for the record a 
section-by-section summary of the FPA. I will first, however, comment 
on several features of the bill, including the meaning of some of the 
language that is used, and Congress' authority to enact such 
legislation.
  The FPA's special motion to dismiss requires the plaintiff to present 
``prima facie evidence'' supporting his cause of action. The standard 
definition of ``prima facie evidence,'' which is employed by the FPA, 
is that given by Justice Story in his opinion for the court in Kelly v. 
Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a 
fact? It is such as, in judgment of law, is sufficient to establish a 
fact; and, if not rebutted, remains sufficient for that purpose.'' For 
similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, 
quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 
978, D.C. Cir. 1945, which notes ``Justice Story's often quoted 
definition of prima facie evidence.''
  This definition is also employed by Black's Law Dictionary, which 
defines ``prima facie evidence'' as:

       Such evidence as, in the judgment of the law, is sufficient 
     to establish a given fact and which if not rebutted or 
     contradicted, will remain sufficient. [Prima facie evidence], 
     if unexplained or uncontradicted, is sufficient to sustain a 
     judgment in favor of the issue which it supports, but [it] 
     may be contradicted by other evidence.

  In a recent concurring and dissenting opinion, Justice Scalia went so 
far as to describe this definition of ``prima facie evidence'' as 
``canonical.'' He also stated:

       The established meaning in Virginia, then, of the term 
     ``prima facie evidence'' appears to be perfectly orthodox: It 
     is evidence that suffices, on its own, to establish a 
     particular fact. But it is hornbook law that this is true 
     only to the extent that the evidence goes unrebutted. ``Prima 
     facie evidence of a fact is such evidence as, in judgment of 
     law, is sufficient to establish the fact; and, if not 
     rebutted, remains sufficient for the purpose.'' 7B Michie's 
     Jurisprudence of Virginia and West Virginia Sec.  32, 1998, 
     (emphasis added).

  Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring 
in part, concurring in judgment in part, and dissenting in part.
  Other Federal courts continue to use this definition of ``prima facie 
evidence:''

       ``A prima facie showing simply means evidence of such 
     nature as is sufficient to establish a fact and which, if 
     unrebutted, remains sufficient for that purpose.'' Cumulus 
     Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 
     1167, 1176 n.13, 11th Cir. 2002.

[[Page S5984]]

       ``Under [the prima facie evidence] standard, it is 
     plaintiff's burden to demonstrate the existence of every fact 
     required to satisfy both the forum's long-arm statute and the 
     Due Process Clause of the Constitution. The prima facie 
     showing must be based upon evidence of specific facts set 
     forth in the record. To meet this requirement, the plaintiff 
     must go beyond the pleadings and make affirmative proof. 
     However, in evaluating whether the prima facie standard has 
     been satisfied, the district court is not acting as a 
     factfinder; rather, it accepts properly supported proffers of 
     evidence by a plaintiff as true and makes its ruling as a 
     matter of law. When the district court employs the prima 
     facie standard appellate review is de novo.'' United States 
     v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir. 
     2001, citations and quotations omitted.
       ``Prima facie evidence consists of specific factual 
     information which, in the absence of rebuttal, is sufficient 
     to show that a fairness doctrine violation exists. * * * * In 
     general terms, prima facie evidence is evidence which is 
     sufficient in law to sustain a finding in favor of a claim, 
     but which may be contradicted.'' American Security Council 
     Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24, 
     D.C. Cir. 1979.
       ``A prima facie case is established by evidence adduced by 
     the plaintiff in support of his case up to the time such 
     evidence stands unexplained and uncontradicted. The words 
     `prima facie,' when used to describe evidence, ex vi termini 
     imply that such evidence may be rebutted by competent 
     testimony. The term prima facie evidence' implies evidence 
     which may be rebutted and overcome, and simply means that in 
     the absence of explanatory or contradictory evidence the 
     finding shall be in accordance with the proof establishing 
     the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282, 
     289-90, 7th Cir. 1949, citations and quotations omitted.
       ``The term prima facie evidence means * * * * [e]vidence 
     good and sufficient on its face; such evidence as, in the 
     judgment of the law, is sufficient to establish a given fact, 
     or the group or chain of facts constituting the party's claim 
     or defense, and which if not rebutted or contradicted, will 
     remain sufficient. Prima facie evidence is evidence which, if 
     unexplained or uncontradicted, is sufficient to sustain a 
     judgment in favor of the issue which it supports, but which 
     may be contradicted by other evidence.''' Gibson v. Zant, 547 
     F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law 
     Dictionary, 5th Edition.
       `Prima facie evidence' is evidence which, if unrebutted or 
     unexplained, is sufficient to establish the fact to which it 
     is related. It proves the fact until other proof contradicts 
     or overcomes the factual hypothesis initially set up by the 
     presumption.'' DAL Int'l Trading Co. v. The SS Milton J. 
     Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

  The FPA makes its special motion to dismiss available in cases 
arising out of speech on matters of public concern. It bears emphasis 
that ``matters of public concern'' include commentary on consumer 
products. As the Pennsylvania intermediate court of appeals recently 
noted, in American Future Systems, Inc. v. Better Business Bureau of 
Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a 
``statement regarding the effectiveness of a consumer product addresses 
a matter of public concern.'' Similarly, the U.S. Court of Appeals for 
the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th 
Cir. 1990, concluded that ``statements about product effectiveness'' 
address matters of public concern. And the Second Circuit, in Flamm v. 
American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, 
has held that a negative evaluation of an attorney's services, directed 
to potential customers, addresses a matter of public concern.
  The following quotation from a New Jersey Supreme Court opinion, 
citing other courts' decisions, illustrates the breadth of support for 
the proposition that commentary on products or services offered to 
consumers is a matter of public concern. That court noted, in Dairy 
Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 
516 A.2d 220, 230, 1986, that:

       Some courts have developed criteria for determining whether 
     the activities and products of corporations constitute 
     matters of public interest. As previously indicated, matters 
     of public interest include such essentials of life as food 
     and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623 
     F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc., 
     supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American 
     Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863. 
     Widespread effects of a product are yet another indicator 
     that statements about the product are in the public interest. 
     Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th 
     Cir.1971) (possible causes of cancer are a matter of public 
     concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp. 
     at 156, article on an arthritis cure is in public interest 
     because significant portion of population is afflicted with 
     arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet 
     Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90, 
     1974, flammability of 25,000 baby cribs held to be matter of 
     public interest; Krebiozen Research Found. v. Beacon Press, 
     Inc., 334 Mass. 86,
     ----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct. 
     65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter 
     of public concern. Still another criterion is substantial 
     government regulation of business activities and products.

  The FPA thus protects speech consisting of consumer commentary that 
focuses solely on the quality, reliability, or effectiveness of a 
consumer product, regardless of whether such commentary addresses 
broader social issues. The quality of goods and services offered to the 
public is itself a matter of public concern. The FPA protects the 
dissemination of any information about a product that would be of 
interest to potential consumers.
  Finally, the FPA allows removal to Federal court to be sought by a 
defendant. Although current law only allows removal when the Federal 
question appears on the face of a well-pleaded complaint, this rule is 
only statutory. Congress is well within its power to allow removal of 
cases that raise a colorable Federal defense.
  Two current Federal statutes clearly allow removal by defendants 
based only on the assertion of a Federal defense. One is 28 U.S.C. 
Sec.  1442(a), which allows Federal officers, among others, to remove a 
state civil action or prosecution to federal court. The other is 9 
U.S.C. Sec.  205, which allows removal of disputes that appear to be 
covered by an international arbitration agreement.
  Although such a limitation is not stated on the face of section 1442, 
the Supreme Court has long held that ``federal officer removal must be 
predicated on the allegation of a colorable federal defense.'' Mesa v. 
California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which 
notes that ``an unbroken line of this Court's decisions extending back 
nearly a century and a quarter have understood all the various 
incarnations of the federal officer removal statute to require the 
averment of a federal defense.''
  The most recent Supreme Court pronouncements confirm that `Article 
III `arising under' jurisdiction is broader than federal question 
jurisdiction under Sec.  1331,'' Verlinden B.V. v. Central Bank of 
Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal-
question jurisdiction ``has been construed as permitting Congress to 
extend federal jurisdiction to any case of which federal law 
potentially forms an ingredient,'' Franchise Tax Board v. Construction 
Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of 
the United States, 9 What. 738, 823 (1824)).
  In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme 
Court also noted that

       ``[t]he judicial power * * * * was not to be exercised 
     exclusively for the benefit of parties who might be 
     plaintiffs, and would elect the national forum, but also for 
     the protection of defendants who might be entitled to try 
     their rights, or assert their privileges, in the same 
     forum,'' and further noting that ``we are referred to the 
     power which it is admitted congress possess to remove suits 
     from state courts to the national courts.''

  The Federal-defense-based removal authorized by the FPA is thus well 
within Congress's constitutional authority.
  Mr. President, I ask unanimous consent that the text of the bill and 
a section-by-section summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                                S. 3493

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Press Act of 2012''.

     SEC. 2. SPECIAL MOTION TO DISMISS.

       Part VI of title 28, United States Code, is amended by 
     adding at the end the following:

                ``CHAPTER 182--SPECIAL MOTION TO DISMISS

``Sec.
``4201. Special motion to dismiss.
``4202. Stay of discovery.
``4203. Exceptions for governmental litigation and commercial speech.
``4204. Interlocutory appeal.
``4205. Special motion to quash.
``4206. Removal.
``4207. Fees, costs, and sanctions.

     ``Sec. 4201. Special motion to dismiss

       ``(a) In General.--A representative of the news media (as 
     defined in section 552(a)(4) of title 5) may file a special 
     motion to dismiss

[[Page S5985]]

     any claim asserted against the representative of the news 
     media in a civil action if the claim arises in whole or in 
     part from an oral or written statement or other expression 
     that is on a matter of public concern or that relates to a 
     public official or figure.
       ``(b) Time Limit.--Unless the court grants an extension, a 
     special motion to dismiss under this section shall be filed--
       ``(1) not later than 45 days after the date of service of 
     the claim, if the claim is filed in Federal court; or
       ``(2) not later than 30 days after the date of removal, if 
     the claim is removed to Federal court under section 4206.
       ``(c) Amendments.--If a special motion to dismiss is filed 
     under this section as to a claim, the claim may not be 
     amended or supplemented until a final and unappealable order 
     is entered denying the special motion to dismiss.
       ``(d) Burdens of Proof.--
       ``(1) Moving party.--A representative of the news media 
     filing a special motion to dismiss under this section as to a 
     claim shall have the burden of making a prima facie showing 
     that the claim is a claim described in subsection (a).
       ``(2) Nonmoving party.--If the movant meets the burden 
     described in paragraph (1) for a claim, the party asserting 
     the claim shall bear the burden of proving that the claim 
     is--
       ``(A) legally sufficient; and
       ``(B) supported by a prima facie showing, based on 
     admissible evidence, of facts sufficient to sustain a 
     favorable judgment.
       ``(3) Failure to meet burden.--If the nonmoving party fails 
     to meet the burden required for a claim under paragraph (2), 
     the claim shall be dismissed with prejudice.

     ``Sec. 4202. Stay of discovery

       ``(a) In General.--Except as provided in subsection (b), 
     upon the filing of a special motion to dismiss under section 
     4201, discovery proceedings in the action shall be stayed 
     until a final and unappealable order is entered on the 
     special motion to dismiss.
       ``(b) Limitation and Exception.--
       ``(1) Limitation.--A stay issued under subsection (a) based 
     on the filing of a special motion to dismiss that only seeks 
     dismissal of a third-party claim or a cross claim asserted by 
     a defendant shall only stay discovery that--
       ``(A) is requested by the party asserting the third-party 
     claim or cross claim; or
       ``(B) relates solely to the third-party claim or cross 
     claim.
       ``(2) Exception.--Upon motion and for good cause shown, a 
     court may order that specified discovery be conducted.

     ``Sec. 4203. Exceptions for governmental litigation and 
       commercial speech

       ``A special motion to dismiss under section 4201 may not be 
     filed as to a claim that--
       ``(1) is brought by the Federal Government or the attorney 
     general of a State; or
       ``(2) arises out of a statement offering or promoting the 
     sale of the goods or services of the person making the 
     statement.

     ``Sec. 4204. Interlocutory appeal

       ``An aggrieved party may take an immediate interlocutory 
     appeal from an order granting or denying in whole or in part 
     a special motion to dismiss under section 4201.

     ``Sec. 4205. Special motion to quash

       ``(a) In General.--A person whose personally identifying 
     information is sought in connection with a claim that arises 
     in whole or in part from an oral or written statement or 
     other expression that is on a matter of public concern or 
     that relates to a public official or figure, or a person from 
     whom such information is sought in connection with such a 
     claim, may file a special motion to quash the request or 
     order to produce the information.
       ``(b) Burdens of Proof.--
       ``(1) Moving party.--A person filing a special motion to 
     quash a request or order under this section shall have the 
     burden of making a prima facie showing that the request or 
     order is a request or order described in subsection (a).
       ``(2) Nonmoving party.--If the movant meets the burden 
     described in paragraph (1), the party who made the request or 
     sought the order shall bear the burden of showing that the 
     claim described in subsection (a) is--
       ``(A) legally sufficient; and
       ``(B) supported by a prima facie showing, based on 
     admissible evidence, of facts sufficient to sustain a 
     favorable judgment.
       ``(3) Failure to meet burden.--If the nonmoving party fails 
     to meet the burden required for a claim under paragraph (2), 
     the request or order to produce the personally identifying 
     information shall be quashed.

     ``Sec. 4206. Removal

       ``(a) Special Motion To Dismiss.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     civil action in a State court that raises a claim that 
     colorably appears to be a claim described in section 4201(a) 
     may be removed to the district court of the United States for 
     the district and division embracing the place where the civil 
     action is pending by a party who may file and who seeks to 
     file a special motion to dismiss under section 4201 that 
     asserts a colorable defense based on the Constitution or laws 
     of the United States.
       ``(2) Exception.--Removal may not be requested under 
     paragraph (1) on the basis of a third-party claim or a cross 
     claim asserted by a defendant.
       ``(3) Remand.--If a civil action is removed under paragraph 
     (1), and a final and unappealable order is entered denying 
     the special motion to dismiss filed under section 4201, the 
     court may remand the remaining claims to the State court from 
     which the civil action was removed.
       ``(b) Special Motion To Quash.--
       ``(1) In general.--A proceeding in a State court in which a 
     request or order that colorably appears to be a request or 
     order described in section 4205(a) is sought, issued, or 
     sought to be enforced may be removed to the district court of 
     the United States for the district and division embracing the 
     place where the civil action is pending by a person who may 
     file and who seeks to file a special motion to quash under 
     section 4205 that asserts a colorable defense based on the 
     Constitution or laws of the United States.
       ``(2) Limitation.--If removal is requested under paragraph 
     (1) for a proceeding in which a request or order described in 
     section 4205(a) is sought, issued, or sought to be enforced, 
     and there is no basis for removal of the remainder of the 
     civil action in connection with which the proceeding is 
     brought, or no party has requested removal of the remainder 
     of the civil action, only the proceeding in which the request 
     or order described is section 4205(a) is sought, issued, or 
     sought to be enforced may be removed.

     ``Sec. 4207. Fees, costs, and sanctions

       ``(a) Attorney's Fees and Costs.--Except as provided in 
     subsection (c), a court shall award a person who files and 
     prevails on a special motion to dismiss under section 4201 or 
     a special motion to quash under section 4205 litigation 
     costs, expert witness fees, and reasonable attorney's fees.
       ``(b) Frivolous Motions or Petitions.--Except as provided 
     in subsection (c)(1), if a court finds that a special motion 
     to dismiss under section 4201, a special motion to quash 
     under section 4205, or a notice of removal under section 4206 
     is frivolous or is solely intended to cause unnecessary 
     delay, the court may award litigation costs, expert witness 
     fees, and reasonable attorney's fees to the party that 
     responded to the motion or notice.
       ``(c) Exceptions.--
       ``(1) Governmental entities.--The Federal Government and 
     the government of a State, or political subdivision thereof, 
     may not recover litigation costs, expert witness fees, or 
     attorney's fees under this section.
       ``(2) Novel legal questions.--A court may not award 
     litigation costs, expert witness fees, or attorney's fees 
     under subsection (a) if the grant of the special motion to 
     dismiss under section 4201 or the special motion to quash 
     under section 4205 depended on the resolution of a novel or 
     unsettled legal question in favor of the movant.''.

     SEC. 3. RELATIONSHIP TO OTHER LAWS.

       Nothing in this Act or the amendments made by this Act 
     shall preempt or supersede any Federal or State statutory, 
     constitutional, case, or common law that provides the 
     equivalent or greater protection for persons engaging in 
     activities protected by the First Amendment to the 
     Constitution of the United States.

     SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

       (a) Table of Chapters.--The table of chapters for part VI 
     of title 28, United States Code, is amended by adding at the 
     end the following:

``182. Special motion to dismiss............................4201''.....

       (b) Interlocutory Appeals.--Section 1292(a) of title 28, 
     United States Code, is amended--
       (1) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (2) by adding at the end the following:
       ``(4) Interlocutory orders granting or denying in whole or 
     in part special motions to dismiss under section 4201.''.
       (c) Nondischargability of Fees and Costs.--Section 523(a) 
     of title 11, United States Code, is amended--
       (1) in paragraph (18), by striking ``or'' at the end;
       (2) in paragraph (19), by striking the period at the end 
     and inserting ``; or''; and
       (3) by inserting after paragraph (19) the following:
       ``(20) for litigation costs, expert witness fees, or 
     reasonable attorney's fees awarded by a court under chapter 
     182 of title 28 or under comparable State laws.''.

     SEC. 5. EFFECTIVE DATE; APPLICABILITY.

       (a) Effective Date.--Except as provided in subsection (b), 
     this Act and the amendments made by this Act shall--
       (1) take effect on the date of enactment of this Act; and
       (2) apply to a claim filed on or after the date of 
     enactment of this Act.
       (b) Claims Filed Before Enactment.--For a claim that was 
     filed before and is pending on the date of enactment of this 
     Act--
       (1) this Act and the amendments made by this Act shall 
     apply to the claim if the court with original jurisdiction of 
     the claim has not entered a judgment on the merits as to the 
     claim as of the date of enactment of this Act; and
       (2) for a claim described in paragraph (1), the periods 
     under sections 4201 and 1446 of title 28, United States Code, 
     as amended by this Act, shall begin on the date of enactment 
     of this Act.

               Free Press Act: Section-by-Section Summary

       Section 4201. Special Motion to Dismiss. A ``representative 
     of the news media'' (as defined in FOIA) may file a special 
     motion to dismiss a legal claim arising out of speech on

[[Page S5986]]

     a matter of public concern or that relates a public official 
     or figure. Once the motion is properly brought, the nonmovant 
     must show that the lawsuit is supported by a prima facie 
     showing of facts sufficient to sustain a favorable judgment. 
     If the nonmovant fails to meet this burden, the lawsuit is 
     dismissed with prejudice.
       Section 4202. Stay of Discovery. Upon filing of the special 
     motion to dismiss, discovery is stayed absent good cause 
     shown. If the motion is filed with respect to a cross claim 
     or third-party claim, discovery is stayed only with respect 
     to that claim. (This exception is made to prevent defendants 
     from using the special motion to dismiss to affect litigation 
     in which the complaint does not assert claims arising out of 
     speech on public issues.)
       Section 4203. Governmental Litigation and Commercial Speech 
     Exceptions. A special motion to dismiss may not be brought 
     against a claim that is brought by the Federal government or 
     a State Attorney General, or that arises out of speech 
     offering or promoting the sale of the speaker's goods or 
     services.
       Section 4204. Interlocutory Appeal. Either side may bring 
     an immediate appeal of the denial or grant of a special 
     motion to dismiss.
       Section 4205. Special Motion to Quash. A party may move to 
     quash a request to obtain the personally identifying 
     information of a person that is made in relation to a legal 
     claim arising out of speech on public issues. (E.g., a 
     company seeks discovery from an ISP of the identity of 
     persons posting unfavorable comments about the company's 
     goods or services on a blog.) If the motion to quash is 
     properly brought, the nonmovant must show that the legal 
     claim is supported by a prima facie showing of facts 
     sufficient to sustain a favorable judgment. If the nonmovant 
     fails to meet this burden, the request for personally 
     identifying information is quashed.
       Section 4206. Removal. A state-court claim arising out of 
     speech on public issues may be removed to federal court by a 
     party that intends to file a special motion to dismiss the 
     claim. Removal may not be requested on the basis of a cross 
     claim or third-party claim. (This exception is made to 
     prevent defendants from removing cases in which the complaint 
     does not assert claims arising out of speech on public 
     issues.) A proceeding to enforce discovery requesting 
     personally identifying information may also be removed, but 
     removal is limited to the discovery-enforcement proceeding.
       Section 4207. Fees, Costs, and Sanctions. A party that 
     prevails on a special motion to dismiss or quash shall be 
     entitled to reasonable attorneys fees and costs. Frivolous 
     motions to dismiss or quash or remove shall be subject to 
     sanctions. Fees may not be recovered by the government, or in 
     cases that turn on the resolution of a novel legal question.
                                 ______