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” [b]plaintiff hasn’t met her burden of without malice[/b] 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]

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

[/quote]

No, it's not circular. There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation. It's not like 47.1 is applied simply by asking the accuser a few questions. It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations. The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.[/quote]

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