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Anonymous wrote:On Reddit things are seen differently and I agree. It’s a win for Justin.
AEO is granted, but for extraneous communications and things, ie not things directly related to the case (such as medical and security, etc). Anything else requested for protection has to be passed by other party. If they can’t agree, the court decides.
So if it’s something about Blake’s health, then AEO. If it’s communications with Taylor, then not protected unless it has to do with Blake’s health or security, etc. judge carved out the ARO to make it very limited to things not necessarily related to the case and communications.
Here is what someone wrote, which I agree with (still more of a win for Justin who wants the communications seen, which he will get)
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This is good because The Lively team only wanted a blanket AEO to protect her communication with third parties, she doesn't care about medical or security.
She wanted all her communication with third parties to be AEO even the ones related to the case and this will only be AEO for intimate communication. We don't care about what she texts her mom or sister.
Baldoni's team wants to see her text to Taylor where she's asking Taylor to intimidate Justin. This is a win for Baldoni
———//////
This seems wrong to me and I don't see this in the PO anywhere. Documents can be produced with an AEO stamp by a party if they involve "highly personal and intimate info about third parties -- OR highliy personal and intimate information about PARTIES other than info directly relevant to the truth or falisy of allegations in the complaints in this case." To me, this means that any text from Swift to Lively might be AEO unless it directly comments on issues in the complaint. It wouldn't need to involve medical or security info, just info about Swift that is private and could be damaging. Lively doesn't need to go ask Freedman permission for this designation as PP above seems to suggest. Freedman can challenge it but he needs to do that affirmatively. That's definitely a win for Lively, and positioning this as a win for Baldoni is bananas.
I'm not exactly clear on what happens when a document involves BOTH information that is relevant to the case AND information that otherwise falls under the AEO requirements. For example, the example that Lively gave in in the hearing of Baldoni venting to a third party about Lively - it seems like Baldoni's venting might not be protected but the third party's response might be if it revealed protectable, non-relevant personal info about the third party -- which I thought was basically what Lively was attempting to protect in the first place. The way that Liman wrote the PO is getting at the issue Lively was raising in the hearing to start with -- info about third parties that wasn't really relevant to the case itself but was still private to those third parties.
People framing this as a win for Baldoni -- wow, I really did not expect that. You guys are really something, hats off to you.
Documents can be produced with an AEO stamp by a party if they involve "highly personal and intimate info about third parties -- OR highliy personal and intimate information about PARTIES other than info directly relevant to the truth or falisy of allegations in the complaints in this case." To me, this means that any text from Swift to Lively might be AEO unless it directly comments on issues in the complaint.
I think you’re missing the import of the words ‘highly personal and intimate’
Texts between BL and Swift as example would likely not be considered highly personal and intimate unless Swift was talking about something highly intimate/personal. So their regular chatter? Anything to do with this case? All in
No. Anything Swift is asked for that involves private info, she can mark AEO, even if it involves the case. Which is a large part of the third party protection Lively was asking for.
When Lively has to produce her own part of those text exchanges, it’s not clear what will happen, but I think she may be able to redact out the third party part of the convo — which I believe is a very large part of what she was trying to accomplish in the first place. In this way (as I said from the beginning) Lively’s own part of the convo gets produced (if relevant) but the third party’s may get procured only as AEO, which helps protect the third parties she was concerned about.
This is not a correct interpretation based on the plain language of the order.
I have seen texts from this litigation (and other litigation) where only one party’s side of the text is shown. I haven’t really been involved in production of texts before so I’m not sure what happens when Lively produces texts between her and Swift. But what I said about Swift’s texts is absolutely what Court’s order explaining the PO says. If Swift or some other third party is producing it, it doesn’t matter whether it’s relevant to the issues in the case - if it’s private and damaging to them to release they get to mark it AEO.
I had thought that the Baldoni folks in this thread were too far gone but that the folks who said they were neutral actually were neutral, but the way you are reading this PO when it is in absolute direct opposition to everything Freedman argued during the hearing regarding normal POs being limited only to trade secrets and the great burden that shifting the onus to Freedman to dispute the AEO designation would cause him is making me think you are gone.
Again, That isn’t how the order reads on its face. And if they were to mark it as such, it would be quickly contested and overturned.
Have you looked at the judges order explaining the PO, and not just the PO itself? That’s where the language re third party productions I’m referring to is.
Why don't you point out the language you think gives AEO protection to anything that is relevant to the allegations in the Complaints?
As others have posted, the language of the PO distinguishes between personal information of the parties vs. the non-parties, and specifically notes that personal information about non-parties will receive greater AEO protections than that of parties (i.e., it will be protected whether it's relevant to the case or not):
The AEO category covers "Highly personal and intimate information about third parties, and highly personal and intimate information about parties other than information directly relevant to the truth or falsity of any allegation in the complaints in this case."
The order the judge issued (visible through some of the discussion from the youtube lawyers who kind of miss the point on this, though I didn't listen to all 40 minutes of their nonsense) explains this a little more:
"The most challenging AEO category is '[h]ighly personal and intimate information about third parties, and highly personal and intimate information about parties other than information directly relevant to the truth or falsity of any allegation in the complaints in this case.' This case involves allegations of sexual harassment and retaliation related to such harassment. [cite] Lively has asserted claims for damages in the form of emotional distress. [cite] Some information of a personal and intimate nature regarding the parties will inevitably have to be shared with persons other than the attorneys. The parties who are making the accusations of who are the subject of the accusations have a right to participate in the prosecution and defense of the claims. The attorneys have a need to consult with their clients. At the same time, however, it is in the nature of discovery that the net will be cast wide and that each side will be forced to disclose to the other information of a sensitive personal and intimate nature that is not necessary or even relevant to the prosecution or defense of the claims.
The point is even more apparent with respect to non-parties. Those persons have not signed up for this lawsuit. But, by virtue of the Rule 45 subpoena power, they will inevitably be brought into it. And their personal information which may be contained in the documents to be discover[ed] [sic] may well be the least centrally relevant to the determination of this action. In order to facilitate the flow of discovery, and AEO provision is appropriate for that category of information. Before the
parties make an AEO designation, the protective order places on them the burden of determining that the information is not directly relevant to an allegation in the pleadings.
For the non-parties, no such burden is appropriate. They are entitled to designate all information in this category as Attorneys Eyes Only, placing the burden to demonstrate the importance of the information for the prosecution or the defense of a claim on the counsel seeking to disclose the information to her client."
In other words, as I said, if Swift is called upon to produce documents, she can mark anything that is highly personal or intimate as AEO. As produced, Freedman won't be able to show that information to his client, it will be limited to lawyers and experts, etc. If Freedman wants to challenge the designation, of course he can, but he will need to be able to show why it is so relevant to the case that he needs to show his client. That is exactly the kind of burden shifting that Freedman was arguing against during the hearing, and he lost that argument. Remember, he was
incensed that Lively was asking for anything outside of trade secrets to be considered AEO in the first place, and then was
more incensed that Lively was asking for third party friends to get special treatment for their private information. The judge solved that problem by allowing the AEO standard to apply to private information from any non-party (and not just celebrity friends lol), but this is absolutely a loss for Freedman, who FIRST AND FOREMOST wanted Lively and Swift and everyone else to come to him begging every time they wanted a document to be treated as Attorneys Eyes Only, which he lost because everyone can so designate those documents on their own and if he disagrees the burden shifts to HIM to contest it. SECONDLY, imho, Freedman also wanted to be able to (1) use the litigation to turn salacious details about Swift over to the public and thus maybe create further interest in the case for Baldoni, and (2) create further hatred of Lively for being the supposed cause of this for Swift, and (3) maybe cause some further rift between Lively and Swift through the whole process.
Lively's attorneys came in asking for PO protections that what would basically benefit Swift as much as they could, and if you look at the comments on this thread from the time of the filings, the Baldoni/Freedman supporters could not believe Lively's attorneys were asking for all of these things! AEO for your friends' personal information?! It simply was not done! And yet, they did ask for this, and to a large part, it was granted to them.
This is not Freedman playing 3D chess. This is Freedman being petulant and punitive during the oral arguments, after having refued to give Lively even a little of what she wanted during the meet and confer negotiations, and then Judge Liman deciding that Lively was more right than Freedman. Sorry not sorry.
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