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]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."

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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]

Trying to reply point by point here if the formatting cooperates:

[quote]There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation.[/quote]

Is there? It's not defined and the law hasn't been tested. Most think it's not the same definition of malice as in defamation law. I believe Lively's papers have been relying on hundreds of pages of legislative history.

[quote]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.[/quote]

Therein lies the rub. 47.1 is supposed to make it easier to get these actions dismissed so the accuser doesn't have to go through expensive litigation. Accuser makes a claim, accused sues for defamation, accuser invokes 47.1 privilege and the case gets dismissed. The Lively case went further because Lively was also suing Wayfarer in a separate case, but a 47.1 accuser doesn't have to do that to invoke the law, and in many cases the only lawsuit at issue will be the defamation lawsuit.

[quote]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]

That's what I'm saying. The law is supposed to grant a privilege that protects victims/accusers from having to go through litigation, similar to what the fair report privilege does for journalists, except you do end up having to litigate the same/similar underlying facts.

Suppose a college student warns other girls that a professor tried to get her to sleep with him to change her grade. She even decides to write an article about it in the school paper, naming and shaming him. He sues her for defamation. Her argument is: this is without malice because this actually happened to me and I'm telling the truth. His argument is: this is malicious, as she's lying because she got a bad grade. You end up having to litigate the truthfulness of her underlying claim, while the intent of the law, I think, was for the accuser to not have to do that. That's what I think is circular.
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No, you are misunderstanding 47.1 especially as it is applied in this case. You can invoke 47.1 in a motion to dismiss but it doesn't, on its own, get the case dismissed. You need other procedural grounds for that (anti-SLAPP or substantive grounds). In Lively's case, the defamation action was dismissed for a mixture of procedural and substantive failures, but Liman didn't use 47.1 at all in the dismissal and does not need to.

Lively is only asking to to apply the damages portion of 47.1 which says that once the defamation action has been resolved *in the accuser's favor* they may be entitled to attorney's fees, treble, and punitive damages from the accused. WAyfarer/Baldoni's defamation action has been deemed to be groundless by the court. It is actually a stronger than usual claim for damages because the defamation lawsuit in question was so meritless.

47.1 is meant to DETER frivolous defamation claims by people accused in good faith of abuse or harassment, by making it very expensive for them to file a defamation claim simply to silence an accuser. The law doesn't on it's own get those defamation claims dismissed because there may be instance (like in the fact pattern you argue) where the defamation claim is actually merited. In your fact pattern, she would have to engage with the defamation allegations directly and either get a verdict in her favor or get them dismissed, and in order to do that she would have to show evidence that her claims were made in good faith. The defamation claims have to be disposed in her favor first before 47.1 would be applied to reward her damages.[/quote]

Now address Lively's attempt to use 47.1 to get fees in the Texas case where the dismissal was based on jurisdiction.

There is a reason that Liman is specifically questioning whether a California rule can be applied under Federal Rule 54, and if it can be, whether the burden/standard of proof changes.  I also think he is watching the Texas case, and vice versa.[/quote]

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