Reply to Blake Lively- Jason Baldoni and NYT

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]I think Ellyn Garofalo has been subbed into the game and is moving to quash a new subpoena filed on Freedman's law firm, Liner Freedman Taitelman Cooley, having filed a new motion to Quash Subpoena in C.D. Cal. (so different case number than Liman's docket).  They've filed a joint stip. laying out each side's version of the facts.  Lively is asking the court to transfer the issue back to Liman (noting Liner Freedman has a NY office).  Liner Freedman says the asks are way too intrusive, asking for the law firms contacts and communications with media outlets, digital providers, and even the law firm's financial and telephone records.

From the affidavit, it looks like this subpoena was served back on May 20.[/quote]

Here is the docket for this CD Cal proceeding:  https://www.courtlistener.com/docket/70536155/liner-freedman-taitelman-coolet-llp-v-lively/[/quote]

I can't believe they both signed on to this document. Is this typical? This isn't the kind of stipulation where they only outline stuff they agree on (like Lively's withdrawal of her emotional distress claims). As PP said, they both lay out their arguments in what would typically be a motion and an opposition, but they're all together. Lively's lawyers say some pretty harsh stuff about BF, and then his law firm is signatory! Like, I'm trying to imagine the two firms going back and forth making edits to this document and then signing off, and I can't.

Wayfarer counsel seems to mostly recycle the same argument while Lively's are a bit more customized. There's two different tests they could use to permit discovery on attorneys. A 3-prong test used in California and a more flexible one from NY. I think Lively has a decent argument even on the harder California test. I sort of agree with Wayfarer's point about content creators because it could be literally anyone with a personal social media account, and yet I understand what Lively means and why they don't want to define it too narrowly. This is very interesting because the whole case is about seeding negative content as retaliation, and you shouldn't be able to "wash" it by doing it through an attorney, which is ordinarily not something you'd believe an attorney would do, but they present some articles about BF's style I think we're all familiar with and point out, by name, two of his clients who post a lot of content about Lively (Megyn Kelly and Perez Hilton). I think Lively's requests are broad, but not really overbroad for the most part (limited by date and limited to communications regarding Lively, Reynolds and the case, etc), not like the crazy subpoena where they wanted all of the phone records of all the Wayfarer people regardless of relevance to the case. Wayfarer's counsel keeps saying these communications are not crucial (one of the elements of the California test) to Lively's SH and emotional distress claims, and Lively's counsel answers the obvious (duh, it's the retaliation claim). The whole document is laid out as Lively's request, Wayfarer's response, and Lively's counterargument, which kind of biases the document towards Lively because they always get the last word (but I do also find their arguments generally better).

As for why they want to go back to Liman, not sure, but may be fodder for those who believe he is biased for Lively. Lively lays out a pretty good argument for communications that at heart I don't believe are privileged (ie, between the law firm and the media, not for the purpose of defending the case). It could go Wayfarer's way or he might want them to confer more. My prediction is to some extent Lively is going to get discovery on this, within these basic parameters but maybe narrower dates or categories (notice how I'm not saying this is definitely going to happen and anyone who doesn't agree is  not a real lawyer, doesn't know what they're talking about, etc). One argument they make is that before the litigation, BF is more of a witness than opposing counsel, so I could see them getting only things from before the CRD was commenced, even though they argue the retaliation is ongoing and, really, the general Lively narrative is that the Wayfarer lawsuit itself and all the press surrounding it is part of the retaliatory campaign, and they've done a good job building to that narrative (see also the MTDs, sanctions motions) but I don't see Liman going that far.[/quote]

Re the format of having all the arguments in one document, that's normal depending on what jurisdiction you're in.  I think it's basically how CD Cal does a motion to quash or a motion to compel, instead of the letter motions we see in SDNY.  It doesn't mean the parties "agree" on what the other party includes in their portion, it just basically combines the different parts into a single doc.  https://publiccounsel.org/wp-content/uploads/2024/01/Guide-How-to-File-a-Motion-to-Compel-2023.pdf

I don't think this subpoena is silly, and this case IS different than other cases where an attorney talks to the media.  But I don't agree with Gottlieb that Freedman would have been serving as only a witness in August just because Lively didn't sue until December - he could have been serving as an attorney working in anticipation of litigation and to ward off a lawsuit.  I don't know how they will resolve this tbh.[/quote]

Thanks for the explanation, I wasn't familiar with that method.

That's fair that it might have been in anticipation of litigation. The tricky thing is that it depends on what the communications are but how do you get to them? Like hypothetically, if stories about Blake being rude to someone at a store are planted by Freedman, that's not privileged and they shouldn't be able to use an attorney to put that out there. But you need some kind of discovery to know it was that and not something related to litigation strategy. [/quote]

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