Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]lol this ended up exactly as I predicted at the beginning - harassment claims dismissed but retaliation going to the fact finder. [/quote]

Kind of brilliant legal move because there's no need to have any actual harassment, only retaliation (e.g. defense against) harassment claims,  whether or not true[/quote]

This isn’t correct, Blake will have to convince the jury that her complaints of a hostile work environment were reasonable.  The judge threw out a bunch of them, she has left the birthing scene, use of the word sexy by Baldoni, Baldoni allegedly telling crew she didn’t watch pornography and Jamie in the trailer.  Opinion, page 116[/quote]

But this can be considered a feature, not a bug. It means they get to put up evidence related to these SH claims without having to prove they were SH. Only that Blake believed they were. There's a decent amount of contemporaneous evidence to that effect, including texts with Jenny Slate. There will also be testimony from Jenny and Alex Sachs about Blake's complaints to them about Baldoni's and Heath's behavior. Also the testimony of the makeup artists about what happened in the trailer, and their depositions were damaging for Heath.

Basically Blake gets to spend a bunch of time at trial outlining all the extremely questionable and inappropriate things that Baldoni and Heath did on set, without having to meet the legal standard of SH. And all they have to prove with it is that Blake believed she'd been SHed, which is a fairly low bar given the amount of documented evidence and the testimony we've seen so far.

The bigger challenge for Blake will be linking the alleged retaliatory behavior to her complaints. Especially given the fact that many of the conversations between Wayfarer and the crisis team are lost forever because they used Signal. There's also a temporal problem, because of the gap between what happened on set, when Blake complained, and when the PR campaign started. Much bigger hurdle. But that was always true. The case is built around the retaliation claims, they've always known that was the core of it.

But getting to provide evidence and testimony of the most signficiant SH allegations without even needing to prove they were SH is a gift. Will also help protect witnesses like Slate and the MUAs on cross examination because now they are just testifying that these events happened or that Blake complained about them or seemed bothered by them. It actually simplifies a lot of things for Blake's case.[/quote]

Nope.  She doesn’t get to bring up anything beyond the four instances I laid out above, the rest of her allegations were ruled out by the judge and cannot be part of her case.  And Baldoni’s side will present evidence of the sexually explicit text messages she sent to her male co-stars, her “sexy boots” video, her use of sexy in her texts etc to show that she herself created a sexually charged environment.  Also testimony about what she was actually wearing in the birthing scene, Heath and perhaps other testifying about the trailer, and so on to challenge her credibility.  [/quote]

Yes, the evidence I outlined is all related to the instances the judge is permitting. The point is that she will get to put the odd and concerning behavior of Baldoni and Heath on trial, but without having to prove it was SH.

So a jury only has to agree that, for instance, Heath's behavior in the trailer incident was objectionable, and that they can believe that Blake thought it constituted sexual harassment. They do not have to agree that it was sexual harassment. This effectively neuters testimony Heath might offer as to his intent in that moment. All that matters is Blake's subjective perception of it, as backed by the makeup artists testimony about what happened and Blake's reaction to it.

Yes, the defense can offer evidence that Blake used the term sexy frequently enough that she couldn't have viewed Baldoni's use as harassment. But since Blake doesn't have to prove it's harassment, only that she believed it was, her side can offer contextual evidence that describing her own shoes as sexy is subjectively different, to Blake, than Baldoni making the sexy comment to Blake on set. And in doing this, they can bring in Jenny Slate as an eyewitness.

The text to the friend who is likely Liz Plank that their behavior was "so much" and that she was crying regularly in response will likely be allowed, as generally speaking to her state of mind and not referencing a specific incident. Also the texts to Jenny about her fear of returning to set after the hiatus.

And none of this has to meet the strict standard of hostile work environment. It only has to meet the standard of whether Blake reasonably believed she had been sexually harassed. All while introducing evidence and testimony about Baldoni and Heath doing weird, inappropriate things.

That's a positive. I don't know if I would call it a win, obviously it would be better if she could try the SH allegations AND if I thought she could win them. But I don't know if she could win them because the hostile work environment standard is tough. So getting to bring them in without having to prove SH is actually somewhat beneficial even if it means she can't get a determination that Baldoni or Heath sexually harassed her.[/quote]

Co-sign this. She was going to have a hard time proving SH, and I think the jury would feel weird finding no SH but yes on retaliation. If SH is taken out of their hands and the judge clearly instructs them there did not need to be actionable SH, that helps narrow the issue to the one that's really bad for WF. While I disagree with those calling it just a "technicality," it's not the worst thing for her to be able to say the SH claims were dismissed not on their merits but because she was an independent contractor. I'm not going to sit here and say this part wasn't a loss for Blake (unlike someone else's supporters who call everything a win), but it's not without a silver lining. [/quote]

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