Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Reading is fundamental:

[i]Assuming [b](without deciding) [/b]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,[/i] which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, [b]and 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.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.
[/quote]

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.[/quote]

No party was arguing that a different burden of proof existed when 47.1 was applied in federal cases until Liman himself raised the possibility.  You can argue that has no significance but please, that’s a silly argument.

You also haven’t addressed Lively”s attempt to use 47.1 for a dismissal on jurisdictional grounds.  Liman is no doubt aware of it, and it shows how overbroad 47.1 is.[/quote]

It's important that Liman is focused on who has the burden of proof, yes. No one is arguing otherwise. It's just not obviously beneficial to either side?

Liman's job is not to consider if 47.1 is "over broad" nor to weigh in on the 47.1 motion in Texas. Neither of these things will have any bearing on Liman's decision. I don't actually have an obligation to "address" Lively's 47.1 motion in Texas, btw. I'm just a commenter on a message board. I honestly don't know much about the Texas proceedings at all so can't weigh in.[/quote]

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