Lively/Baldoni Lawsuit Part 2

[Anonymous]

For the non lawyers, here's a brief summary of the Berk holding:
Berk v. Choy reinforces the Supreme Court's consistent approach to conflicts between state law and the Federal Rules of Civil Procedure. When a valid Federal Rule directly addresses the same question as state law, the Federal Rule governs, regardless of how important or substantive the state's policy objectives may be. The Court has never invalidated a Federal Rule under the Rules Enabling Act, and this decision continues that unbroken streak.

The decision also demonstrates the limits of Erie doctrine. While federal courts sitting in diversity must apply state substantive law, the Federal Rules occupy their own domain. States, with the possible exception of the kinds of affidavit or certification requirements contemplated under Rule 11, cannot use procedural requirements, even those with substantive policy goals like reducing frivolous litigation, to alter federal practice in diversity cases
https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation

[Anonymous]

Anonymous wrote:For the non lawyers, here's a brief summary of the Berk holding:
Berk v. Choy reinforces the Supreme Court's consistent approach to conflicts between state law and the Federal Rules of Civil Procedure. When a valid Federal Rule directly addresses the same question as state law, the Federal Rule governs, regardless of how important or substantive the state's policy objectives may be. The Court has never invalidated a Federal Rule under the Rules Enabling Act, and this decision continues that unbroken streak.

The decision also demonstrates the limits of Erie doctrine. While federal courts sitting in diversity must apply state substantive law, the Federal Rules occupy their own domain. States, with the possible exception of the kinds of affidavit or certification requirements contemplated under Rule 11, cannot use procedural requirements, even those with substantive policy goals like reducing frivolous litigation, to alter federal practice in diversity cases
https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation

But 47.1 doesn't directly conflict with FRCP 54. FRCP 54(d) governs the award of costs and fees to a prevailing party. Court costs are automatically assumed but parties must file a motion for attorney's fees. That motion must include legal grounds for the award. The legal grounds may be federal or state, it depends on governing law. But using 47.1 doesn't contradict the federal rules, it fits within them. 47.1 creates a legal grounds for obtaining attorney's fees under 54(d).

[Anonymous]

Anonymous wrote:

Anonymous wrote:For the non lawyers, here's a brief summary of the Berk holding:
Berk v. Choy reinforces the Supreme Court's consistent approach to conflicts between state law and the Federal Rules of Civil Procedure. When a valid Federal Rule directly addresses the same question as state law, the Federal Rule governs, regardless of how important or substantive the state's policy objectives may be. The Court has never invalidated a Federal Rule under the Rules Enabling Act, and this decision continues that unbroken streak.

The decision also demonstrates the limits of Erie doctrine. While federal courts sitting in diversity must apply state substantive law, the Federal Rules occupy their own domain. States, with the possible exception of the kinds of affidavit or certification requirements contemplated under Rule 11, cannot use procedural requirements, even those with substantive policy goals like reducing frivolous litigation, to alter federal practice in diversity cases
https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation

But 47.1 doesn't directly conflict with FRCP 54. FRCP 54(d) governs the award of costs and fees to a prevailing party. Court costs are automatically assumed but parties must file a motion for attorney's fees. That motion must include legal grounds for the award. The legal grounds may be federal or state, it depends on governing law. But using 47.1 doesn't contradict the federal rules, it fits within them. 47.1 creates a legal grounds for obtaining attorney's fees under 54(d).

But Liman is specifically stating that he has not decided whether Rule 41.7 requests can be brought under Rule 54, and if they can be, suggests that a different burden of proof may apply. That is very explicitly stated in his order.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:For the non lawyers, here's a brief summary of the Berk holding:
Berk v. Choy reinforces the Supreme Court's consistent approach to conflicts between state law and the Federal Rules of Civil Procedure. When a valid Federal Rule directly addresses the same question as state law, the Federal Rule governs, regardless of how important or substantive the state's policy objectives may be. The Court has never invalidated a Federal Rule under the Rules Enabling Act, and this decision continues that unbroken streak.

The decision also demonstrates the limits of Erie doctrine. While federal courts sitting in diversity must apply state substantive law, the Federal Rules occupy their own domain. States, with the possible exception of the kinds of affidavit or certification requirements contemplated under Rule 11, cannot use procedural requirements, even those with substantive policy goals like reducing frivolous litigation, to alter federal practice in diversity cases
https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation

But 47.1 doesn't directly conflict with FRCP 54. FRCP 54(d) governs the award of costs and fees to a prevailing party. Court costs are automatically assumed but parties must file a motion for attorney's fees. That motion must include legal grounds for the award. The legal grounds may be federal or state, it depends on governing law. But using 47.1 doesn't contradict the federal rules, it fits within them. 47.1 creates a legal grounds for obtaining attorney's fees under 54(d).

But Liman is specifically stating that he has not decided whether Rule 41.7 requests can be brought under Rule 54, and if they can be, suggests that a different burden of proof may apply. That is very explicitly stated in his order.

All he says is that the parties should assume for the purposes of this briefing and hearing that a 47.1 motion may be made under FRCP 54. That just means that he explicitly does NOT want them to come to him with arguments that 47.1 doesn't apply under FRCP 54. He is also definitely not suggesting that a new burden of proof may apply. He's asking the parties to present arguments and case law supporting a particular burden of proof, but he's not tipping his hand as to what he thinks it should be.

His order is just designed to narrow the issues for the briefs and hearing. I tend to think it's unlikely he would waste everyone's time (including his own) with this hearing regarding burdens if he was leaning towards saying 47.1 doesn't apply at all and 54(d) supersedes. If he just wanted to be thorough, he could ask for briefing on the burden issue so that he could address it in his ruling, but I doubt he'd request a hearing. But that's just my opinion, I could be wrong. He worded the order very carefully to avoid indicating what he actually thinks here.

[Anonymous]

Reading is fundamental:



Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.

[Anonymous]

Anonymous wrote:Reading is fundamental:



Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Reading is fundamental:



Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.

No party was arguing that a different burden of proof existed when 47.1 was applied in federal cases until Liman himself raised the possibility. You can argue that has no significance but please, that’s a silly argument.

You also haven’t addressed Lively”s attempt to use 47.1 for a dismissal on jurisdictional grounds. Liman is no doubt aware of it, and it shows how overbroad 47.1 is.

[Anonymous]

Anonymous wrote:The 47.1 motion is really interesting to me because I think all of Wayfarer's best arguments against it are procedural/technical, but that the facts favor Lively if she can overcome those challenges.

There are absolutely questions about whether the court can even apply 47.1, including the jurisdictional issues and the question of whether the dismissal of Wayfarer's defamation lawsuit can be considered a final decision in Lively's favor.

However, if those objections are overcome, I think Lively has strong arguments both that there is a protected communication and that her allegations were made without malice. I know the Baldoni folks on here will yell at me for that, but just taking the "without malice" issue, we have the settlement statement saying Lively's concerns deserved to be heard, and we have a text from Baldoni saying that Lively truly believed she had been wronged. And that's on top of Lively's own testimony, texts, and emails, all of which seem to back up the idea that she was genuinely upset about what had happened on set and believed lines had been crossed. I think that's hard to overcome.

I actually don’t think the facts favor lively on the question of without malice when you consider Vanzan and the email from Sony saying Blake wanted to destroy the dailies. Taken together that shows a person who was invested in controlling the narrative not in the truth or a redress of grievances. Also explains why there were so many “lies.” I use quotes b/c Blake’s fans will say they weren’t lies and that she just misremembered. But the dance scene and smells so good comes to mind. As well as the birthing scene where she made it seem like Adam was flown in just to look at her half dressed when in fact he had been on set the entire time as Justin’s acting coach. She also made it seem intimate when the baby and the baby’s parents were in the room just off camera. But if Blake could have controlled the narrative as she wanted we’d never know that. That shows malice.

[Anonymous]

Neither the MTD in the WF case or the MTD in the Wallace case were decided on the basis of the privilege created by the California law. Just another wrinkle to the calculus.

[Anonymous]

I could be completely wrong about the Berk case being on Liman's mind, freely admit I am not a Liman mind reader. But worth noting that not only was it recently cited by Babcock in opposition to the Texas Rule 47.1 motion for fees, it also issued in early 2026, after the briefing was completed on the 47.1 motion in the NY Case.

[Anonymous]

Anonymous wrote:

Anonymous wrote:The 47.1 motion is really interesting to me because I think all of Wayfarer's best arguments against it are procedural/technical, but that the facts favor Lively if she can overcome those challenges.

There are absolutely questions about whether the court can even apply 47.1, including the jurisdictional issues and the question of whether the dismissal of Wayfarer's defamation lawsuit can be considered a final decision in Lively's favor.

However, if those objections are overcome, I think Lively has strong arguments both that there is a protected communication and that her allegations were made without malice. I know the Baldoni folks on here will yell at me for that, but just taking the "without malice" issue, we have the settlement statement saying Lively's concerns deserved to be heard, and we have a text from Baldoni saying that Lively truly believed she had been wronged. And that's on top of Lively's own testimony, texts, and emails, all of which seem to back up the idea that she was genuinely upset about what had happened on set and believed lines had been crossed. I think that's hard to overcome.

I actually don’t think the facts favor lively on the question of without malice when you consider Vanzan and the email from Sony saying Blake wanted to destroy the dailies. Taken together that shows a person who was invested in controlling the narrative not in the truth or a redress of grievances. Also explains why there were so many “lies.” I use quotes b/c Blake’s fans will say they weren’t lies and that she just misremembered. But the dance scene and smells so good comes to mind. As well as the birthing scene where she made it seem like Adam was flown in just to look at her half dressed when in fact he had been on set the entire time as Justin’s acting coach. She also made it seem intimate when the baby and the baby’s parents were in the room just off camera. But if Blake could have controlled the narrative as she wanted we’d never know that. That shows malice.

Don’t forget when she said Steve Sarowitz made her uncomfortable during the birth scene and later we found out he was not on set during that time. Another lie.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Reading is fundamental:



Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.

No party was arguing that a different burden of proof existed when 47.1 was applied in federal cases until Liman himself raised the possibility. You can argue that has no significance but please, that’s a silly argument.

You also haven’t addressed Lively”s attempt to use 47.1 for a dismissal on jurisdictional grounds. Liman is no doubt aware of it, and it shows how overbroad 47.1 is.

It's important that Liman is focused on who has the burden of proof, yes. No one is arguing otherwise. It's just not obviously beneficial to either side?

Liman's job is not to consider if 47.1 is "over broad" nor to weigh in on the 47.1 motion in Texas. Neither of these things will have any bearing on Liman's decision. I don't actually have an obligation to "address" Lively's 47.1 motion in Texas, btw. I'm just a commenter on a message board. I honestly don't know much about the Texas proceedings at all so can't weigh in.

[Anonymous]

I just can't see Liman interpreting the fees provision in a manner that requires the case to be litigated. The existing record is either sufficient or it isn't. And as WF points out -- there was no finding of actual damages here, not does Rule 41.7 provide for them. It's impossible to calculate treble or punitive damages without having a finding of actual damages.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Reading is fundamental:



Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.

No party was arguing that a different burden of proof existed when 47.1 was applied in federal cases until Liman himself raised the possibility. You can argue that has no significance but please, that’s a silly argument.

You also haven’t addressed Lively”s attempt to use 47.1 for a dismissal on jurisdictional grounds. Liman is no doubt aware of it, and it shows how overbroad 47.1 is.

It's important that Liman is focused on who has the burden of proof, yes. No one is arguing otherwise. It's just not obviously beneficial to either side?

Liman's job is not to consider if 47.1 is "over broad" nor to weigh in on the 47.1 motion in Texas. Neither of these things will have any bearing on Liman's decision. I don't actually have an obligation to "address" Lively's 47.1 motion in Texas, btw. I'm just a commenter on a message board. I honestly don't know much about the Texas proceedings at all so can't weigh in.

I already said that Liman would be ruling on the case in front of him. But Likely's TX motion makes obvious the manner in which R. 47.1 can easily be abused due to defects in drafting. She can't stop herself from overreaching.

[Anonymous]

Anonymous wrote:

Anonymous wrote:The 47.1 motion is really interesting to me because I think all of Wayfarer's best arguments against it are procedural/technical, but that the facts favor Lively if she can overcome those challenges.

There are absolutely questions about whether the court can even apply 47.1, including the jurisdictional issues and the question of whether the dismissal of Wayfarer's defamation lawsuit can be considered a final decision in Lively's favor.

However, if those objections are overcome, I think Lively has strong arguments both that there is a protected communication and that her allegations were made without malice. I know the Baldoni folks on here will yell at me for that, but just taking the "without malice" issue, we have the settlement statement saying Lively's concerns deserved to be heard, and we have a text from Baldoni saying that Lively truly believed she had been wronged. And that's on top of Lively's own testimony, texts, and emails, all of which seem to back up the idea that she was genuinely upset about what had happened on set and believed lines had been crossed. I think that's hard to overcome.

I actually don’t think the facts favor lively on the question of without malice when you consider Vanzan and the email from Sony saying Blake wanted to destroy the dailies. Taken together that shows a person who was invested in controlling the narrative not in the truth or a redress of grievances. Also explains why there were so many “lies.” I use quotes b/c Blake’s fans will say they weren’t lies and that she just misremembered. But the dance scene and smells so good comes to mind. As well as the birthing scene where she made it seem like Adam was flown in just to look at her half dressed when in fact he had been on set the entire time as Justin’s acting coach. She also made it seem intimate when the baby and the baby’s parents were in the room just off camera. But if Blake could have controlled the narrative as she wanted we’d never know that. That shows malice.

Explain how Vanzan or the Sony email show that Lively brought her lawsuit "with malice."

The argument from Lively's side is/will be: she made the complaints about both on set behavior and Baldoni's other behavior in real time as they happened, to Wayfarer and to Sony. She has contemporaneous texts and emails with other people expressing her distress about what was happening on set. She has the 17 point list asking for certain conditions to be met to ensure a safe set before she returned. She has Baldoni telling his PR team that Lively clearly really believed she'd been wronged. And she has the joint announcement of the settlement which states that both sides agree Lively's claims "deserved to be heard."

On the other side, the argument is what exactly? Her lawyers used a tricky subpoena to get Jen Abel's text messages in advance of her lawsuit? How does that show malice? Or that she requested to have some dailies destroyed (not all as some of you keep saying, just those featuring intimate scenes/nudity) and a Sony exec thought that was irregular? Again, how does that show malice? Make the legal argument.

Y'all are going to try this motion on Reddit in your little echo chamber and then once again be so shocked when the actual ruling has nothing to do with all your little pet obsessions like Vanzan or Taylor Swift or Ryan Reynold's finances or whatever. Has Vanzan ever even been raised in any legal argument by Wayfarer in the Lively case? I don't think it has. Shouldn't that tell you something about whether it's a relevant argument? Baldoni's own lawyers haven't even used it for anything.