The Oklahoma Bar Journal April 2026

a plaintiff to his proof: a motion for summary judgment.” 69 Before ruling on such a motion, “the court must allow the nonmovant adequate time for discovery.” 70 Important still, during a Rule 56 evidence-based dismissal motion, a federal court must consider the facts in the light most favorable to the nonmovant. 71 By contrast, anti SLAPPs, including Oklahoma’s, have no similar presumption; everything depends on whether the nonmovant has established a prima facie case. 72 Moreover, and as noted, anti-SLAPP statutes differ from Fed. R. Civ. P. 56 because they require the plaintiff to make an evidentiary showing before discovery – indeed, anti-SLAPP statutes typically stay discovery pending resolution of the anti-SLAPP motion. By contrast, Rule 56 has a strong preference for discovery for evidence-based dispositive motions. 73 In fact, this (preference for discovery during evidence-based motions) is a policy choice that the federal rules have already made, which Berk holds must be respected in diversity juris diction cases to avoid injecting dis sonance in federal court practice. 74 But some federal courts have insisted on applying anti-SLAPP

statutes in diversity jurisdiction cases, reasoning that such stat utes are “substantive” because they create a right to avoid the burdens of litigation. 75 After Berk , it is questionable whether this analysis still holds true. Berk , after all, applied a robust conflict analysis: The question is no longer whether a state law (in this case, an anti-SLAPP statute) has sub stantive purposes or effects. The court emphasized that as long as a federal rule is “on point,” and it “really regulate[s] procedure,” in the manner of disposing claims, then “the substantive nature of [a state] law, or its substantive purpose, makes no difference ” to the overall conflict analysis. 76 The question is whether a federal rule answers the same question that the state law addresses. If it does, and if that rule is valid (which it almost inevitably always is), then the state law is displaced. 77 To recap the analysis so far, anti-SLAPP statutes likely answer differently the same questions as rules 8, 12, 26 and 56. They appear to address what a plaintiff must show at the pleading stage (Rule 8 says: a short and plain statement; anti-SLAPPs say: a prima facie

matters outside the pleadings – affidavits, declarations and evi dence of probability of success. 62 Anti-SLAPP laws do not take the plaintiff’s allegations as true; they focus on the evidence and whether it meets the prima facie threshold. 63 Indeed, anti-SLAPP statutes permit dismissal not because the plaintiff has failed to state a claim but because the plaintiff has failed to marshal sufficient evidence to establish their prima facie case. Justice Ketanji Jackson’s concur rence made this point with force: A state law that requires judges to “account for a matter outside the pleadings ... when deciding whether to dismiss” a case directly conflicts with Rule 12(d). 64 Berk likely also makes a con flict between anti-SLAPP statutes and Rule 26 unavoidable. By their design and operation, anti-SLAPP statutes impose a discovery mor atorium as soon as the dismissal motion is filed. 65 That means, unless a district court, in its dis cretion, finds good cause to permit discovery, the target of an anti SLAPP statute’s evidence-based motion must make do without a guarantee of discovery. 66 The Federal Rules of Civil Procedure, by contrast, provide for discov ery when a nonmovant faces the prospect of an evidence-based dismissal motion. 67 Thus, the two laws function differently. That explains why long before Berk , nearly every federal court of appeals that applied anti-SLAPP statutes permitted discovery. 68 What the lower federal appellate courts had telegraphed, Berk ’s rea soning now likely confirms. Finally, consider Rule 56. Berk made clear that the Federal Rules of Civil Procedure already pre scribe “the mechanism for putting

Berk holds that when the Federal Rules of Civil Procedure answer a procedural question, they answer it for everyone who walks through the federal courthouse doors. 90

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL