Anonymous wrote: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.

Anonymous wrote:Didn't they also agree this one couldn't be appealed? So the precedential value of Liman's decision will be limited.

I don't see how the burden of proof for the privilege wouldn't be on the defendant, Lively. Plaintiffs had the burden of proof to prove their defamation allegations, which were dismissed, but under a different privilege. It would be Lively I'd think, who has to prove they were privileged under 47.1. The obvious sticking point is the "without malice" part. I have always thought you do need an evidentiary hearing for that. It's a question of fact. If Lively v. Wayfarer had gone to trial and she'd won a jury verdict on SH, that should have been enough to show it was without malice and had a reasonable basis, but that settled, so no such findings ever occurred.

I think she has to make an initial showing that the underlying events occurred and that she she had a reasonable, good faith belief to file the CRD. And then Wayfarer would have to rebut withhe stealing the movie stuff, and someone needs to decide which story is true.

I don't really understand why Liman is asking who bears the burden when to me the question is how do you make the fndings of fact. Do you do it on the pleadings, an evidentiary hearing, even a trial?

Anonymous wrote:So Liman decided to hop back into the hot tub with Gottlieb?

Anonymous wrote:Didn't they also agree this one couldn't be appealed? So the precedential value of Liman's decision will be limited.

I don't see how the burden of proof for the privilege wouldn't be on the defendant, Lively. Plaintiffs had the burden of proof to prove their defamation allegations, which were dismissed, but under a different privilege. It would be Lively I'd think, who has to prove they were privileged under 47.1. The obvious sticking point is the "without malice" part. I have always thought you do need an evidentiary hearing for that. It's a question of fact. If Lively v. Wayfarer had gone to trial and she'd won a jury verdict on SH, that should have been enough to show it was without malice and had a reasonable basis, but that settled, so no such findings ever occurred.

I think she has to make an initial showing that the underlying events occurred and that she she had a reasonable, good faith belief to file the CRD. And then Wayfarer would have to rebut with the stealing the movie stuff, and someone needs to decide which story is true.

I don't really understand why Liman is asking who bears the burden when to me the question is how do you make the fndings of fact. Do you do it on the pleadings, an evidentiary hearing, even a trial?

Anonymous wrote:Last couple of posters are saying a lot of words, but not sure their point. Lively team tried to get their website shut down. They were fine publishing a lengthy New York Times article that they had spent months working on, but when he tried to provide his side, they tried to get it shut down.

The federal judge said no, and even made a statement something like both sides are able to tell their story.

Just wild that there’s even a discussion on this. She went through all this expense, all this bad publicity, tons of embarrassing texts and emails that have come out, the Sony team blatantly insulting her and talking about how she’ll never work again, emails from distributors who were selling her products saying they didn’t want to work with her anymore, all to end up with nothing to show for it.

Not one celebrity, even the sisterhood girls or her supposed best friend Taylor, have come out with kind of support or even been willing to be seen with her and it’s been weeks. I’m obviously not a fan but even I feel a little sorry for her. This just couldn’t have gone worse for her. I truly don’t know what she and her team were thinking.

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I also think the longer we wind up waiting for the 47.1 decision, the more likely it is to be favorable to Blake. Liman had this whole trial wiped from his docket, including a Daubert hearing two weeks ago that would have been time consuming. Once he decides 47.1, this PITA case is out of his courtroom. So he has reason to decide swiftly and end the circus. If it was really just a matter of "this law doesn't apply I'm this court" or even "motion granted but attorneys fees only", there is no reason to sit on it or let it stretch into the summer.

Not necessarily. He could be sick of these people and this case. It’s been such of abuse of power, starting with the Vanzan lawsuit which was deeply unethical. Tying up federal courts like this. They could have worked out this disagreement in a number of ways, including mediation or arbitration. To launch this very public lawsuit like this is truly unforgivable and so offensive to real victims of either retaliation or sexual harassment.

Blake fans truly can’t believe she lost in this manner - to come out with no money and not even an NDA. They are clinging to a line in the Wayfarer lawyers statement that said something like she deserves to be heard as proof of victory. It’s beyond pathetic. I guess if you need this ray of hope to keep going, have it. Blake lost and she will never repair her reputation.

She obviously knows this which is why she’s going to every prominent high fashion event like Fendi and Met Gala as a big FU to all the minions to let them know I’m unbothered and I’m acting like this never happened and I’m still rich and can wear designer clothes!

It’s transparent and sad.

Look, I get it. You hate her. But I'm not talking about feelings or opinions about her. I don't care about the Met Gala or whatever. I don't care if Blake works again (I have never seen any of her movies) or what she wears or how much money she has. I am only interested in the legal outcome of the case and I'm very interested in how a novel California law intended to punish people who use defamation lawsuits to silence good faith abuse/harassment allegations. The celebrity stuff is a sideshow for me.

If the judge is sick of the case, he would be highly motivated to resolve this. An experienced federal judge is not a petulant child. He's not going to let a docket on a *settled* case linger, open, because he just doesn't feel like making a decision on a single outstanding motion. That makes no sense. If he's taking time with this motion, it's because it's not just a straightforward "no."

Also, while I know people on here love to flip out about Vanzan, the judge has never expressed any interest in it one way or the other. I don't think he cares. I don't think he's going to punish Blake for Vanzan by ruling against her on 47.1. Liman has been remarkable even handed through this entire thing and doesn't seem to allow his personal feelings about anyone to enter into his decisions. For instance, I strongly suspect he hates Bryan Freedman (it got to the point where Freedman almost never spoke during hearings because you could tell Liman just couldn't stand him) but that didn't stop him from ruling against Blake in dismissing most of her claims. So if you are waiting for some belated comeuppance for Vanzan, I wouldn't hold your breath. It's not at issue and I don't think Liman works that way at all.

I never said the judge was acting like a petulant child. It seemed obvious he thought that this case should be settled without going to trial though. You can cry all you want about how he hated BF, it is safe to say he was likely fed up with both sides by the end of this case. I never said that he was going to use Vanzan to punish Blake, but reasonable people see what she did as an abuse of power.

Justin did not sue her because she accused him of sexual harassment. He sued her because of the New York Times article. It’s likely why his legal team sued the New York Times first for defamation. That was actually a pretty brilliant move, even though it was a total longshot and no one thought it had a reasonable chance of going their way, but it shows that they were very upset by that article, on the same day it published, his agency fired him and his podcast cohost quit, so it obviously had immediate repercussions and he felt like he did not get a chance to tell his side of the story and show the power that she had as well as the organic backlash against her.

If Blake had just gone through legal channels, instead of trying to have a flashy New York Times article and make this a publicity case instead of a legal case, maybe she would have some recourse. But most people don’t see this going her way. Even if she is awarded something, do you really think she will be awarded anywhere near a $300 million and damages she sought? That seems like such a stretch. Again she could see some legal fees for this NARROW part of the case, but I don’t think anyone reasonably believes she’s going to get a windfall from this.

Yes, he claimed the NYT article was defamation. And his claims were thrown out of court because it wasn't defamation. Because Blake didn't lie. Yet Baldoni and his lawyers claimed she did, in order to discredit her allegations.

There was nothing stopping Baldoni from "telling his side of the story" or defending himself in court. In fact, the ultimate defenses that prevailed in the majority of claims -- that Lively exercised too much control on the set to be considered an employee and that some of her allegations didn't qualify as SH to begin with -- turned out to be good ones. Why not just mount a normal defense? Why instead issue a 400m baseless lawsuit while collaborating with content creators like Sloane Stephens to spread a narrative about Lively being a liar and Ryan Reynolds being a master manipulator?

He filed the lawsuit to try and silence her. And 18 months later they settled while agreeing her complaints "deserved to be heard." He could have litigated the matter normally and it would have been find, instead he tried to destroy her reputation so that no one would ever believe her. Which is precisely what 47.1 is designed to deter.

You’ve missed the whole point. The New York Times article did not give him a chance to tell his own story. They only considered Blake aside and cherry picked texts.

When he tried to tell his own story, they tried to put a gag order on him. It didn’t work, and within weeks the dance video and the website were put up and the public turned, never to return to Blake’s favor again.

Justin could have done an interview to tell his story in a separate article. He didn't even try. He just filed what turned out to be a totally baseless defamation lawsuit.

The proposed gag order had to do with Bryan Freedman running around giving interviews where he called Blake a liar. The judge instead reminded everyone they were subject to court rules about discussing the case, and Freedman stopped, so a gag order wasn't necessary. The gag order was not trying to silence Justin's claims against Blake. Those were silenced when they were found to be baseless and dismissed.

The dance video was ambiguous and only showed how polarized people were. It didn't prove Lively's claims nor did it show her to have lied.

Most people don't care about this case or Lively, but yes, Baldoni and Freedman have created a small, vigilant army of Blake haters. Even though never showed her allegations to be lies and even agreed they deserved to be heard. I'd love only you could see how you've been manipulated. I actually feel bad for you that you lack critical thinking to understand how you've been used here.

No, this isn’t quite right. Blake’s team tried to get a gag order on the website that Freedman’s team put up. That’s the one that had a bunch of texts and emails that showed a lot more context and when people started to turn.

Yes, Blake’s fans have called the dance video ambiguous. The public at large overwhelmingly sided with Justin. She looked uncomfortable in the scene because she can’t act for crap and never could, but with the judge rightly decided on was that any improvisation was done by both of them. It was reasonable for a scene where a couple would be dancing, holding each other, and falling in love, which was the description of the scene.

What pissed most people off was the blatant lie that she told in that scene. When she didn’t know that they were microphones picking up the dialogue, clearly. She said that he said that he nuzzled her neck and said “you smell sooooo good.” That is super creepy, but it’s actually not what happened at all. He nuzzled her neck and she apologized that her body makeup must smell bad. And he said, it smells good?

She has pulled that nonsense at every turn. She had tried to seal evidence that Baldoni‘s team wanted out - the last one that was so pathetic before she settled was that her team tried to get the birth video sealed, because they knew that the public would not think any reasonable person would identify it as porn.

Just a reminder, Blake settled with absolutely no damages or attorneys feed paid or even an NDA. She had absolutely no leverage at the end and apparently was terrified to go to trial.

I don't remember the details of the gag order but that website they put up contained two docs: their countersuit and the "Exhibit A" that they filed with it filled with all the texts and emails. But that exhibit was hugely problematic. First, you aren't supposed to file something like that with an initial claim. Second, many if not most of the texts and emails in it were unverified, poorly sourced, taken out of context, etc. Third, that document actually confirms the vast majority of Blake's allegations.

The judge criticized Wayfarer for including that exhibit in their complaint and basically said "you know you're not supposed to do this." And then I think he asked Blake's side if they were going to seek to have it struck, and they said something like "we reserve the right to do that but not at this time." I can't remember if the gag order had anything to do with it (gag orders are usually about the lawyers and parties talking to the press) but I remember this exchange in a hearing.

I suspect that the reason Lively's lawyers didn't immediately ask for that exhibit to be struck is because it actually helped their defamation case against him, and now helps the 47.1 motion. I actually think that exhibit is going to come back up in the 47.1 decision because it's not something you do -- it's an attempt to get around normal discovery processes and it's using the court to push a press narrative, which is why Liman was annoyed with it. And that plays straight into their 47.1 argument that the countersuit wasn't file in good faith as a genuine legal filing, but as a tactic to try and silence an accuser via legal harassment.

The biggest problem with Exhibit A was that it included a narrative presentation of "the facts" but the narrative isn't based on anything. Normally if you were going to assert facts like that with a complaint, you would file them as a sworn affidavit, usually by the plaintiff filling the complaint. But Exhibit A isn't a sworn affidavit, it has no authorship at all. Who is "speaking" in the narrative? No one knows. This is a big no no. You are allowed to assert facts in the complaint itself, and can provide some direct evidence (like texts, emails) but there are restrictions on how (it has to be plainly and concisely stated, and you can't go on tangents -- everything in the complaint needs to relate directly to the allegations listed). Wayfarer's countersuit also didn't follow those rules, but Exhibit A was much, much worse. I never saw anything like that in close to 30 years of state and federal litigation practice. If I had, I would have moved to strike immediately.

FWIW I thought Lively's original complaint was also coloring a bit outside the rules, but in a less dramatic way. It also did a good job of tying each text or other piece of evidence they included directly to the underlying allegations, making it less egregious. It's still definitely a document intended for public consumption, but not nearly as big of a violation as what Baldoni/Wayfarer did in their countersuit.

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I also think the longer we wind up waiting for the 47.1 decision, the more likely it is to be favorable to Blake. Liman had this whole trial wiped from his docket, including a Daubert hearing two weeks ago that would have been time consuming. Once he decides 47.1, this PITA case is out of his courtroom. So he has reason to decide swiftly and end the circus. If it was really just a matter of "this law doesn't apply I'm this court" or even "motion granted but attorneys fees only", there is no reason to sit on it or let it stretch into the summer.

Not necessarily. He could be sick of these people and this case. It’s been such of abuse of power, starting with the Vanzan lawsuit which was deeply unethical. Tying up federal courts like this. They could have worked out this disagreement in a number of ways, including mediation or arbitration. To launch this very public lawsuit like this is truly unforgivable and so offensive to real victims of either retaliation or sexual harassment.

Blake fans truly can’t believe she lost in this manner - to come out with no money and not even an NDA. They are clinging to a line in the Wayfarer lawyers statement that said something like she deserves to be heard as proof of victory. It’s beyond pathetic. I guess if you need this ray of hope to keep going, have it. Blake lost and she will never repair her reputation.

She obviously knows this which is why she’s going to every prominent high fashion event like Fendi and Met Gala as a big FU to all the minions to let them know I’m unbothered and I’m acting like this never happened and I’m still rich and can wear designer clothes!

It’s transparent and sad.

Look, I get it. You hate her. But I'm not talking about feelings or opinions about her. I don't care about the Met Gala or whatever. I don't care if Blake works again (I have never seen any of her movies) or what she wears or how much money she has. I am only interested in the legal outcome of the case and I'm very interested in how a novel California law intended to punish people who use defamation lawsuits to silence good faith abuse/harassment allegations. The celebrity stuff is a sideshow for me.

If the judge is sick of the case, he would be highly motivated to resolve this. An experienced federal judge is not a petulant child. He's not going to let a docket on a *settled* case linger, open, because he just doesn't feel like making a decision on a single outstanding motion. That makes no sense. If he's taking time with this motion, it's because it's not just a straightforward "no."

Also, while I know people on here love to flip out about Vanzan, the judge has never expressed any interest in it one way or the other. I don't think he cares. I don't think he's going to punish Blake for Vanzan by ruling against her on 47.1. Liman has been remarkable even handed through this entire thing and doesn't seem to allow his personal feelings about anyone to enter into his decisions. For instance, I strongly suspect he hates Bryan Freedman (it got to the point where Freedman almost never spoke during hearings because you could tell Liman just couldn't stand him) but that didn't stop him from ruling against Blake in dismissing most of her claims. So if you are waiting for some belated comeuppance for Vanzan, I wouldn't hold your breath. It's not at issue and I don't think Liman works that way at all.

I never said the judge was acting like a petulant child. It seemed obvious he thought that this case should be settled without going to trial though. You can cry all you want about how he hated BF, it is safe to say he was likely fed up with both sides by the end of this case. I never said that he was going to use Vanzan to punish Blake, but reasonable people see what she did as an abuse of power.

Justin did not sue her because she accused him of sexual harassment. He sued her because of the New York Times article. It’s likely why his legal team sued the New York Times first for defamation. That was actually a pretty brilliant move, even though it was a total longshot and no one thought it had a reasonable chance of going their way, but it shows that they were very upset by that article, on the same day it published, his agency fired him and his podcast cohost quit, so it obviously had immediate repercussions and he felt like he did not get a chance to tell his side of the story and show the power that she had as well as the organic backlash against her.

If Blake had just gone through legal channels, instead of trying to have a flashy New York Times article and make this a publicity case instead of a legal case, maybe she would have some recourse. But most people don’t see this going her way. Even if she is awarded something, do you really think she will be awarded anywhere near a $300 million and damages she sought? That seems like such a stretch. Again she could see some legal fees for this NARROW part of the case, but I don’t think anyone reasonably believes she’s going to get a windfall from this.

Yes, he claimed the NYT article was defamation. And his claims were thrown out of court because it wasn't defamation. Because Blake didn't lie. Yet Baldoni and his lawyers claimed she did, in order to discredit her allegations.

There was nothing stopping Baldoni from "telling his side of the story" or defending himself in court. In fact, the ultimate defenses that prevailed in the majority of claims -- that Lively exercised too much control on the set to be considered an employee and that some of her allegations didn't qualify as SH to begin with -- turned out to be good ones. Why not just mount a normal defense? Why instead issue a 400m baseless lawsuit while collaborating with content creators like Sloane Stephens to spread a narrative about Lively being a liar and Ryan Reynolds being a master manipulator?

He filed the lawsuit to try and silence her. And 18 months later they settled while agreeing her complaints "deserved to be heard." He could have litigated the matter normally and it would have been find, instead he tried to destroy her reputation so that no one would ever believe her. Which is precisely what 47.1 is designed to deter.

You’ve missed the whole point. The New York Times article did not give him a chance to tell his own story. They only considered Blake aside and cherry picked texts.

When he tried to tell his own story, they tried to put a gag order on him. It didn’t work, and within weeks the dance video and the website were put up and the public turned, never to return to Blake’s favor again.

Justin could have done an interview to tell his story in a separate article. He didn't even try. He just filed what turned out to be a totally baseless defamation lawsuit.

The proposed gag order had to do with Bryan Freedman running around giving interviews where he called Blake a liar. The judge instead reminded everyone they were subject to court rules about discussing the case, and Freedman stopped, so a gag order wasn't necessary. The gag order was not trying to silence Justin's claims against Blake. Those were silenced when they were found to be baseless and dismissed.

The dance video was ambiguous and only showed how polarized people were. It didn't prove Lively's claims nor did it show her to have lied.

Most people don't care about this case or Lively, but yes, Baldoni and Freedman have created a small, vigilant army of Blake haters. Even though never showed her allegations to be lies and even agreed they deserved to be heard. I'd love only you could see how you've been manipulated. I actually feel bad for you that you lack critical thinking to understand how you've been used here.

+1 The fact that it's women who are so easily manipulated is depressing.