Why UPEPA Defendants Should Never Introduce Evidence

As a UPEPA Defendant You Should Never Introduce Evidence

You have just been served with a defamation lawsuit. The claims against you are meritless — you know it, your attorney knows it, and in all likelihood the plaintiff knows it too. This law suit was meant to silence you. This is exactly the kind of suit the Utah Public Expression Protection Act, commonly known as UPEPA, was designed to stop. So your attorney files a UPEPA motion for expedited relief. And then someone in the room says: “Should we put in some evidence just to be safe?”

The answer is no. Not “probably not.” Not “it depends.” No. Introducing evidence as a UPEPA defendant is one of the most consequential strategic mistakes you can make — and understanding why requires understanding what UPEPA actually does.

How UPEPA Structures the Fight: A Burden That Shifts

UPEPA, codified at Utah Code §§ 78B chapter 25, is Utah’s anti-SLAPP statute. SLAPP stands for Strategic Lawsuit Against Public Participation — a category of litigation where the lawsuit itself is the weapon. The plaintiff doesn’t need to win. The plaintiff needs to cost you enough in legal fees, depositions, and discovery defense that you stop speaking, stop organizing, or stop exercising whatever right provoked the suit in the first place.

UPEPA exists to end those cases early, before the litigation machinery does its damage. It applies when a claim arises from “an act in furtherance of the constitutional or statutory right to petition, right to speak freely, right of association, or right to participate in government.” Utah Code § 78B-6-1403(1). If your conduct falls within that definition, you can move to dismiss under UPEPA and trigger a framework designed to put the plaintiff to the proof immediately.

That framework works in stages. First, the defendant establishes that the claim arises from protected activity. Once that threshold is met, the burden shifts — entirely — to the plaintiff. The plaintiff must then demonstrate “a prima facie case as to each essential element of the cause of action.” Utah Code § 78B-25-107. If the plaintiff cannot make that showing, the case is dismissed. Attorney’s fees follow. The statute is designed to be a guillotine, not a balance scale.

That shift is exactly what you destroy when you introduce evidence as defendant.

Why Introducing Evidence as a UPEPA Defendant Backfires

You Invite a Factual Contest You Don’t Need to Win

UPEPA is not a summary judgment motion. And it is not a motion that asks the court to weigh competing evidence and decide who has the better factual case. It is a threshold motion that asks a single question: did the plaintiff make a prima facie showing as to each essential element of the cause of action asserted? The plaintiff bears the burden of answering that question affirmatively. You do not bear the burden of disproving it.

When you introduce evidence — declarations, exhibits, counter-narratives — you signal to the court that this is a factual dispute. And you have just transformed a legal threshold question into a contested factual proceeding. That is not the proceeding UPEPA created. That is the proceeding the plaintiff needs to survive.

You May Waive the Statute’s Strongest Structural Protections

UPEPA contains extraordinary procedural protections for defendants. Discovery is stayed automatically upon the filing of a UPEPA motion. Utah Code § 78B-23-104. Hearings must be set on an expedited schedule. The stay can only be lifted in narrow, defined circumstances. These protections exist precisely because the legislature understood that SLAPP plaintiffs use discovery as a weapon — not to gather evidence, but to impose costs.

When a defendant introduces evidence, those structural protections become awkward. The plaintiff now has an argument that the discovery stay should be lifted so they can test the defendant’s evidence. A court that might otherwise hold firm on the stay now faces a different equitable posture: the defendant chose to put facts in issue. Why should the plaintiff be barred from probing them?

This is not an academic concern. It is the kind of argument that sophisticated plaintiff’s counsel makes in UPEPA proceedings, and it has traction precisely because it is not facially unreasonable.

You opened the door.

You Give the Plaintiff Something to Fight Against

A UPEPA defendant’s ideal posture is to be a void the plaintiff cannot fill. The plaintiff must affirmatively demonstrate a prima facie showing of defamation. If the defendant says nothing beyond “this claim arises from protected activity,” the plaintiff must conjure that showing from their own pleadings and evidence. They cannot respond to what you haven’t said.

The moment you introduce evidence, you give the plaintiff a target. Your declaration about what happened gives them something to dispute. Your exhibit about the context of your protected activity invites a competing exhibit about the context they want to emphasize. Your evidence about your intent gives them a theory about a different intent. Every piece of evidence you introduce is a litigation hook. You are handing the plaintiff a way to stay in the case.

What UPEPA Defendants Should Do Instead

The defense on a UPEPA motion has one job: establish, from the face of the complaint and the undisputed record, that the claims arise from protected activity. That’s it. Do that cleanly, and you have triggered the burden shift.

This means the responsive motion should be surgical. Identify the protected activity. Map the plaintiff’s claims to that activity. Show that UPEPA’s threshold is met. Then stop. Let the statute do the rest.

If the underlying facts are genuinely disputed — if there is a real question about whether the conduct was protected — the analysis shifts, and the calculus around evidence changes. But that is a different problem from the one most UPEPA defendants face. Most UPEPA defendants are exactly what they appear to be: people who spoke, organized, petitioned, or participated, and got sued for it. For those defendants, the facts are not the problem. The plaintiff’s failure of proof is the problem. Do not rescue the plaintiff from that failure by building them a factual scaffolding they can use to claim a genuine dispute.

The Appellate Dimension: Why This Decision Has Long Consequences

UPEPA motions are interlocutory. If a trial court denies a UPEPA motion to dismiss, the defendant has the right to an immediate interlocutory appeal under Utah Code § 78B-25-109. The Utah Court of Appeals reviews UPEPA rulings for correctness — meaning the appellate court takes a fresh look at the legal questions without deference to the trial court’s conclusions.

What this means practically: the record you build at the trial court level is the record the Court of Appeals reviews. If that record is cluttered with defendant’s evidence, competing factual narratives, and disputed credibility questions, you have made the appellate court’s job harder and your “correctness” standard less powerful. A clean record showing protected activity, followed by a plaintiff who could not demonstrate a prima facie evidentiary showing, is the ideal appellate posture. Introducing evidence muddies that.

On appeal, the question should be pure: did the plaintiff meet their burden? If the answer is clearly no, you win. If the answer requires disentangling a factual dispute that the defendant helped create, you have made a clear case complicated — and complicated cases do not always resolve the right way.

Understanding how UPEPA motions work and what happens if a UPEPA motion is denied is essential groundwork before the motion is ever filed. The appellate exit strategy is part of the opening brief strategy. They are the same decision.

A Note on When Evidence Might Be Warranted

There is a narrow circumstance where limited evidence may serve a defendant’s interest: establishing the threshold showing that the conduct constitutes protected activity, if that fact is not apparent from the complaint itself. UPEPA’s first step requires the defendant to demonstrate that the claim arises from protected activity, and in some cases — where the complaint is artfully pled to obscure the protected nature of the conduct — a declaration or exhibit clarifying the nature of the activity may be necessary.

Even then, the evidence should be narrow, targeted, and confined to the threshold question. It should not address the merits of the plaintiff’s claims. It should not anticipate or rebut plaintiff’s evidence. It should do one thing: establish protected activity.

The distinction matters, and courts notice when defendants have confused establishing the threshold with litigating the merits. A focused declaration that says “this constitutes protected activity” is different from a declaration that says “here is everything that happened and why the plaintiff is wrong.” The first is sometimes necessary. The second is almost always a mistake.

The Decision You Have to Make

If you are a defendant facing a SLAPP suit and considering a UPEPA motion, the question of evidence will come up. It always does. The instinct to fight back — to tell your side, to put your version of events in front of the court — is entirely human. It is also, in most UPEPA cases, the wrong instinct.

UPEPA was written to take the merits off the table at the motion stage unless the plaintiff can make a prima facie showing of defamation or another defamation-based tort. The legislature made that choice deliberately. When you introduce evidence, you are undoing that. You are handing the plaintiff a dispute they need.

The burden-shifting framework under UPEPA is one of the sharpest tools in Utah appellate practice. The question is whether you want to use it as it was designed or sand down its edge before the fight begins.

If you are facing a UPEPA motion — as a defendant or as a plaintiff — Lotus Appellate Law handles Utah anti-SLAPP litigation from the trial court through the Court of Appeals. Contact us to discuss the strategic posture of your case before the motion is filed.