Reply to Lively/Baldoni Lawsuit Part 2

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Reply to "Lively/Baldoni Lawsuit Part 2"

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[quote=Anonymous]The critical question from the order:

The Court will receive argument and letter briefs on the following questions: [b]Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden d[/b]iffers depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, a[b]nd whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. [/b]The parties may also address how that burden may be discharged.

I don't think Liman is ever going to get to applying facts to the standard.  He's going to find a way to say that the statute isn't applicable or can't be applied under Federal Rules.  And for good reason, he shouldn't be the one interpreting a state statute that is likely Unconsistituional.

We'll know more about his thinking after oral arguments. [/quote]

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