Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous]Didn't they also agree this one couldn't be appealed? So the precedential value of Liman's decision will be limited.

I don't see how the burden of proof for the privilege wouldn't be on the defendant, Lively. Plaintiffs had the burden of proof to prove their defamation allegations, which were dismissed, but under a different privilege. It would be Lively I'd think, who has to prove they were privileged under 47.1. The obvious sticking point is the "without malice" part. I have always thought you do need an evidentiary hearing for that. It's a question of fact. If Lively v. Wayfarer had gone to trial and she'd won a jury verdict on SH, that should have been enough to show it was without malice and had a reasonable basis, but that settled, so no such findings ever occurred.

I think she has to make an initial showing that the underlying events occurred and that she she had a reasonable, good faith belief to file the CRD. And then Wayfarer would have to rebut with the stealing the movie stuff, and someone needs to decide which story is true.

I don't really understand why Liman is asking who bears the burden when to me the question is how do you make the fndings of fact. Do you do it on the pleadings, an evidentiary hearing, even a trial?[/quote]

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