Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.[/quote]

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion. [/quote]

He’s not asking them for facts.  He’s asking each party to provide a list of cases on how the burden issue by Monday with no discussion and specifically include cases that may reflect how Rule 54 may affect the burden of proof under Rule 47.1.[/quote]

Sure fine. I just meant information he needs so draft his ruling. Doesn’t change my point.[/quote]

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