Blake Lively and Justin Baldoni head to court.

13:02Anoushka Mutanda Dougherty:There's nothing of this nature. You are the power. You're creating a scenario that's just not there. Through the use of your family, you're trying to create a narrative that's just not really true.

13:11Shaun Kent:Now, obviously, Blake Lively's side are arguing he was her boss and her co-star. So he had complete power over her on that set. But we've spoken about Discovery before. Discovery in this case has been extensive. That's where texts, emails, I mean, letters, if you're fond of that, can be subpoenaed and entered into the docket as evidence of certain things that were going on to contribute to the argument that either side are making. I'm going to read you some of the messages between Blake Lively and Taylor Swift. I just want you to tell me how damaging you think they are to Blake's narrative that she was in the one down position.

13:46Shaun Kent:OK.

13:47Anoushka Mutanda Dougherty:OK. Got it.

13:48Shaun Kent:All right. So this is from Blake Lively to Taylor Swift, who is her BFF. She says, quote, if you get here with this doofus director of my movie is still here. Open brackets. I'll be ushering him out, but I hope he's still here. Close brackets. Can you do me a huge favor? I need help with him. Can you tell him you're excited for the movie, that you read the book, but what you're freaking out over is the pages I sent you? What a magnetic scene that is or whatever descriptives you're comfortable with. I'll send you the scene. You don't have to read it. Of course, it's a quick read. He's a clown and thinks he's a writer now and got this rewrite and told me he appreciates my passion.

14:21Shaun Kent:That's it. Full stop. So having the greatest living storyteller unknowingly echo to him how much you love what we're doing. Open brackets, giving him credit as if you wrote them with me. Close brackets will go such a long way. And then later on, Taylor Swift texts back saying, I'll do anything for you with two exclamation marks. How damaging do you think that is, Sean?

14:41Anoushka Mutanda Dougherty:I think it hurts tremendously. I mean, it's giving Mean Girl vibes and it's going along with what Justin has alleged in his defense is this is a concerted effort. I'm not saying it will work, but I think those texts are very damaging. And here's why text messaging are, to me, always damaging. And you and I have talked about this. The hardest thing to overcome is somebody's own words. And these are her own words. And not only are they just her own words, they're even worse because their own words that she didn't think would ever get out to the public. So those are her private sentiments at the time.

15:15Anoushka Mutanda Dougherty:These are private text messages that to me are going to be hard to explain because they're your private thoughts to your private bestie talking complete trash about Justin and showing the power dynamic and actual control. I think it hurts. And that's what I would be using if I was Justin's lawyer. Like these text messages show the true Blake Lively.

15:37Shaun Kent:So we have those text messages that allow us to see that Taylor was coming to her apartment and Justin Baldoni was there. And then we have text messages after the fact. Obviously, we weren't in the room with them, but from Blake's words, we can kind of get a picture of what took place. She texts her saying, you were so epically heroic today. I recapped every moment to Ryan. I kept remembering stuff, you making shit up about me and lenses and referring to yourself as my doll, this clown falling for it all, but also resisting it. You are the world's absolute greatest friend ever. I won the lottery.

16:07Shaun Kent:And then Taylor texts back in cap saying, I won the lottery. You are the coolest person in the world and you like me. So from that, what could a jury pick out that Taylor has come to the house, made some stuff up, said that Blake's rewrites were the best and tried to potentially strong arm Justin Baldoni into going for Blake's version of the script that she wrote. I've had a lot of messages from people saying, you know, any jury that sees this is just going to think she's a nasty person. that compounds with some of those clips that were flying around that showed her an unflattering light but a lot of questions from other people saying so what so what she might be a mean girl in those texts or she's texting with her best friend she might have had power in that she had a list of friends but when it comes to some of the things that she alleged happened to her on that set does that power dynamic actually hold and I want to bring us back to this birthing scene that she speaks about that took place and it ends with us.

17:03Shaun Kent:It says, on the day of shooting the scene, this is in her amended complaint, in which Miss Lively's character gives birth, Mr. Baldoni and Mr. Heath suddenly pressured Miss Lively to simulate full nudity despite no mention of nudity for this scene in the script, her contract or in previous creative discussions. Mr. Baldoni insisted to Miss Lively that women give birth naked and that his wife had, quote, ripped her clothes off during labour. He claimed it was, quote, not normal for women to remain in their hospital gowns while giving birth. Miss Lively disagreed but felt forced into a compromise that she would be naked.

17:33Shaun Kent:From below the chest down, she speaks about having only a small piece of fabric covering her genitalia. She speaks about this scene, which are usually closed sets being streamed to multiple monitors across the set and the crew, a full crew there, able to watch it. Within that moment, a lot of people are asking, who cares that Taylor Swift's her friend, that Ryan Reynolds is her husband, that she emails Matt Damon, when she's got her legs in stirrups with a piece of fabric over her genitalia.

17:58Anoushka Mutanda Dougherty:Yes, but don't forget, credibility goes on the stand. And everyone's, you know, when we're talking about potential jurors, jurors weigh an individual's credibility. And as you saw, and we saw in real time in the Diddy trial, the allegations were abhorrent. But the second juror does not trust a witness and does not trust what they say. So the way they look at it, if a witness is discredited from the first words out of their mouth, the rest of the stuff that comes up, a jury is going to be like, I don't know if I necessarily believe it. And we remember this from watching the Diddy trial. And don't forget, Blake will have to take the stand.

18:39Shaun Kent:She has to?

18:40Anoushka Mutanda Dougherty:Absolutely. Oh, it's not like a criminal trial? Absolutely. This is not a criminal trial. This is her lawsuit. She is bringing it. She will have to testify. Okay, let's make that clear. She's bringing it. And when she gets on the stand, And all of that credibility comes on the stand with her. She will have to explain how she felt. She will have to explain. And when we've represented individuals who are actors before, juries always think the same thing. They're acting. When they get emotional on the stand, jurors think this person is a great actor. We do not believe the words they're saying. So that's why those text messages to me are so important, because guess what?

19:15Anoushka Mutanda Dougherty:You're not doing those text messages. You're not acting. That is your raw, true self. And the juries balance those situations. So to me, yes, the things that she is alleging are abhorrent. They could 1000 % be true. I'm not saying they're not. But as a person who's tried a lot of cases, those text messages could sully the jury on anything that she says afterwards, even if it's true, even if it's happened, even if she believed the things that she believed. If the jury doesn't trust her, they're not going to listen.

19:42Shaun Kent:But what about the fact that, you know, anybody on that jury, like you said before, can take a little look into their own personal lives and say, Jesus, if the messages I send to my best friend were put out there, it might potentially be a lot worse than this. I mean, she calls him a doofus and an idiot. Is that not something that Blake Lively's camp could get up there and say, go in your own messages and take a little look at what you say?

20:06Anoushka Mutanda Dougherty:I love that you just said that because we've done it, but that's going to be incumbent on her legal team to make sure that that jury looks at those text messages as just text messages. And jurors are people. You might have somebody who has gone through some type of hostile work environment who has never talked about it to a soul. And it doesn't matter what Blake does. I believe her. You know, those are the things about the jury trial. You just don't know the system. And to go back to the Diddy trial, we talked about it. Everybody thought that was a slam dunk. The jury felt completely different.

20:39Shaun Kent:I mean, Blake Lively's camp have referenced multiple times, not only in her complaint, but elsewhere, that there were other women on the set who have expressed that they saw things that were inappropriate. Jenny Slate has referenced that things were said to her by Justin Baldoni that she deemed to be inappropriate. so that testimony could in some way corroborate what Blake is saying. But my question here is, Jenny Slate had a different level of power to Blake Clively. So is there a world in which the jury can go, well, yeah, Jenny Slate could be sexually harassed and she could be in the conditions of a hostile work environment, but you weren't because the real world dynamics were different?

21:14Anoushka Mutanda Dougherty:Absolutely. I've seen it happen many a time. They could say Jenny didn't have the same power dynamic as Blake. Blake could not have been sexual harassed because she could have stopped it at any point in time. But Jenny could have. These are all things that are going into what could possibly happen on the trial. And it all goes back to why we're saying mediation sometimes is a good situation because both parties have a lot to lose at this trial. Both do. And so that's a lot of reasons why sometimes we say maybe I should try to mediate this case. Maybe you should try to work this out.

21:45Shaun Kent:But Sean, they've got a hell of a lot to lose if they settle as well. Absolutely. This has been going on for a long time. I mean, and a lot of people are really concerned about this because on one hand, it's, you know, did Justin Baldoni, was he a victim on this set? Did she wrestle control away from him and then try and destroy his reputation? And on the other hand, it's asking the questions, you know, we're 10 years on from Me Too. Is this still happening on film sets where women are being sexually harassed? Those are some very serious questions at the heart of this case. And if they settle behind closed doors, I can only imagine what the headlines would be.

22:17Anoushka Mutanda Dougherty:If I were representing them, I would have advised settlement is going to be you might get a prick in your finger on a settlement and people might be a little upset when this trial happens and people are watching y 'all get on the stand and the negativity comes out and your history comes out and the badness comes out and people start talking to you as negative as humanly possible. That's an arm cut off.

22:43Justin Baldoni:We focus on the part of the internet that most people don't know about. It's called the dark web. Undercover in the furthest corners of the dark web, US special agents are on a mission to locate and rescue children from abuse. Move in now. From the BBC World Service, World of Secrets, the darkest web follows their shocking investigations. Listen on BBC.com or wherever you get your BBC podcasts.

23:15Shaun Kent:I want to ask you another question about reputation in the public sphere. So one of the things that Blake Lively is alleging happened to her is a smear campaign. Justin Baldoni, Jamie Heath, Wayfarer Studios engaged a PR crisis management team to go out there and smear her reputation. on the other side of that because of the discovery and what we've seen we've got a glimpse into some of the messages with taylor swift the best friend we've got a glimpse into some of the emails from ryan reynolds the husband of blake lively and in some of their correspondence you can see things that mirror some of the art they have created in one message from taylor swift she says in reference to justin baldoni quote i think this bitch knows something is coming because he's gotten out his tiny violin.

23:59Shaun Kent:And then in a song, which people were speculating, we have not had a confirmation, we did ask, we haven't received a response, but a song called Cancelled, which people were speculating was about the Blake Lively lawsuit. She says, were you just too smug for your own good or bring a tiny violin to a knife fight? Baby, that all ends tonight. Good things. I like my friends cancelled. And I like them cloaked in Gucci and in Scandal. And there's a whole chorus there, which I know, Sean, you probably jam out to on new ones.

24:23Anoushka Mutanda Dougherty:I mean, just every day, just beating down, just let the rhythm hit them. Yeah.

24:26Shaun Kent:But we've got that kind of mirroring there of the phrase tiny violin in a song people were already speculating was about this lawsuit. And then in one of Ryan Reynolds emails to Colleen Hoover, who was the author of the book, it ends with us. He says, quote, I heard you guys got a tummy bug and you're stuck in New York. I can't think of anything worse, although it might be your body ridding itself of any residual baldoni. I'd rather be puking in a gulag than hijacking performative feminism while practicing personal growth catchphrases in the mirror. and then in Wolverine versus Deadpool there was a character one of the variants of Deadpool nice Paul which people have speculated was a parody of Justin Baldoni and he says at one point quote I'd be fighting alongside them but my calling is to someday host a podcast that monetizes the women's movement so Sean I'm assuming this isn't defamation because it's protected it's an art it could be satire etc but isn't there a way that Justin Baldoni's head counsel could stand up in the courtroom and say, you know, you've alleged, Miss Lively, you've alleged that this man was out to ruin your reputation, but actually your best friend, your husband have created caricatures of him and memorialized that in some of the most popular pieces of art.

25:37Shaun Kent:You know, it was a huge movie and Taylor Swift, as we know, is one of the highest selling songwriters of all time. Is there legs to that argument?

25:45Anoushka Mutanda Dougherty:Yes, potentially. And what will end up happening is there's something I believe that Blake's team are following things called emotion and lemony. Emotion and lemony says, your honor, we should not allow this information to come in in front of the jury. One, it has nothing to do with me is what Blake is going to say. I cannot control what my friends say. And to allowing this jury to speculate what they mean without them testifying is completely impermissible. So in other words, is the prejudice of allowing this so high that it overcomes how necessary or how informative it would be to help the jury?

26:26Anoushka Mutanda Dougherty:Justin's, on the other hand, is going to say, I think it should all come in. She's filing a lawsuit against me because of this power dynamic. She is using her famous friends and all of these messages and these movies to destroy my reputation. I think the jury should be allowed to hear it. So that is going to be the battle that's going to go back and forth with them.

26:44Shaun Kent:And look, we, of course, we reached out to Taylor Swift. We reached out to Ryan Reynolds to ask them about their inspiration, about those two respective pieces of work. And we didn't get a response. But you mentioned there about you can't have this in unless we call them to the stand. And they tell us what they meant by this. Can they call? I think it's called hostile witnesses. If Taylor goes, I don't want to come, but they call her anyway. How does that work?

27:04Anoushka Mutanda Dougherty:Yes. So, of course, to get a witness to come to the stand, you have to give them a subpoena. A subpoena, of course, is a formal document that you send to somebody and say, I want you to show up and testify. Now, once you are subpoenaed, that is an order of the court, as you've heard us talk about before. If you ignore the order of the court, you can be held in contempt. The court can put you in jail because you have ignored an order of the court. Now, what will end up happening a lot of times in our situations is if you send a subpoena to somebody who does not want to testify and does not want to help you, they can be seen as hostile.

27:40Anoushka Mutanda Dougherty:You should be very careful of putting somebody who hates you on your stand to help your case out. That is what's called a hostile witness. That witness is hostile to your position. Under the rules of the courtroom, and not to get too fancy, but usually what ends up happening is when Blake is asking questions of a witness on her side, She cannot ask what are called leading questions. All she can ask are things as, can you tell me what happened next? Taylor, what happened when this happened? Taylor, tell me about this. That's what you do with your own witness. Now, when a witness is hostile to your position, you can ask what are called leading questions.

28:25Anoushka Mutanda Dougherty:Isn't it true you hate me? Isn't it true you sent blank? Isn't it true? because what we're basically doing, as you remember from the Diddy trial, Anushka, you're cross-examining your own witness because they are hostile to your position. Courts are not big fans of putting in witnesses who are hostile to your position for the reason I just stated, but sometimes it's necessary.

28:48Shaun Kent:Sean, like I said, we reached out to the lawyers to see what took place inside the courtroom. We haven't heard, but is there a way for us to ascertain whether there was a settlement or not?

28:56Anoushka Mutanda Dougherty:Absolutely. What would end up happening is even if it's confidentiality, because it's federal court, things are required to be filed. And so the mediator would have to file his ADR report, his alternative dispute resolution. He might not necessarily say it's settled, but you would see an ADR report saying the case has been resolved. And two, the parties would have to file what's called a stipulation of dismissal. And if they filed a stipulation of dismissal along with that ADR resolution, that would put two and two together that the case has been settled.

29:27Shaun Kent:Sean, before you go, I know you've got a bar question for us. I said, please, can it be trial related? Are we still doing that?

29:35Anoushka Mutanda Dougherty:Yes. Are you ready? Mm-hmm. Hardy and Jack work together. They are embroiled in a bitter lawsuit. Okay. Hardy alleges that Jack says many awful sexually related jokes around her and makes the environment completely uncomfortable. Trial is set for two weeks. The two parties have engaged inside of a mediation. During a break at a coffee table, Jack went up to Hardy and said, I am sorry. I should not have done any things. I'm completely wrong. Let's try to work this thing out. They are able to work the case out. Jack pays Hardy an undisclosed sum of money. Hardy then does a press conference and tells the world about the money.

30:20Anoushka Mutanda Dougherty:Jack says, I want this thrown out. and the judge does and they are now at trial. While on the stand, Jack says to the jury, I would never apologize to her. I have not done a single thing wrong. She is a liar. Hardy then tells the judge, I have a problem because he lied during his mediation and says this in front of the judge. What should the judge do and why?

30:47Shaun Kent:And she signed the thing. Did she sign the thing at the beginning of the mediation that says, I won't talk about this?

30:52Anoushka Mutanda Dougherty:You got to sign them every time so you know that is confidentiality.

30:55Shaun Kent:OK. How bad is it? Well, the judge has to make a decision on how bad that information is for the jury to hear. And I'd say weighing up what was said and that she said he essentially admitted to doing this to me is pretty bad. So the judge should either give sanctions or throw the whole thing out, probably throw the whole thing out and try and get a whole new jury, you know, and redo the trial.

31:18Anoushka Mutanda Dougherty:Well, so far, you're good. Keep going through your analysis. Those are the things that a court would actually do in that situation. But remember, would Hardy actually want the case thrown out? Because Jack has now lied on the stand. But it's not up to Hardy. It's up to the judge. Hardy would say, Your Honor, he said this stuff. He lied. I should be able to get into the stuff he said at mediation or what would Hardy want? Your analysis is spot on, by the way.

31:43Shaun Kent:I don't know. We should be able to get into it or throw it or I win. Or I win?

31:51Anoushka Mutanda Dougherty:I don't think they can just pick you. I win. Pick me. But if you were Hardy, what would you want?

31:59Shaun Kent:I want things that were said at mediation back on the table.

32:03Anoushka Mutanda Dougherty:Yes. Hallelujah, Jesus. Yes. 100%. Yes. You would want that judge to say, I want that confidentiality waived because he just lied in front of the jury. And you should be able to say, I know it was confidential agreement. However, he lied in front of this jury. I should be able to bring that stuff in. I know it's extreme, but I don't want a new trial because he lied and I should be able to hammer him with it.

32:26Shaun Kent:We got there in the end. You got there.

32:29Anoushka Mutanda Dougherty:You saw the excitement.

32:31Shaun Kent:Yeah, you were like, wow, she's really losing brain cells week on week. Yeah, there you go. Wow. We'll see if any of this does actually play out in that courtroom in New York. Like I said before, we will be out there covering every day like we did with the Diddy trial. Sean, I'm sure I'll be having two hour long post court debriefs with you like I did with the Diddy trial. Therapist slash lawyer. Yeah. But thank you so much for coming on this week. We really appreciate it.

32:56Anoushka Mutanda Dougherty:Thank you, Anushka. I appreciate you having me.

32:59Shaun Kent:That was our resident trial attorney, Sean Kent, joining us from South Carolina. And that's it for this episode of Fame Under Fire from BBC Sounds with me, Anushka Matandadawati. Make sure you subscribe and turn on your push notifications so you never miss a thing.

33:14Blake Lively:I'm Eleni Jones. And I'm Mark Kermode. And in Screenshot, we guide you through the ever-changing landscape of the moving image. I really like any story about self-delusion. My intent is to allow the audience to see the shining through these people's eyes. Meeting those on both sides of the camera. And uncovering fascinating insights into what we watch. How would you describe the difference between the doppelganger and the clone? Why is it such a cinematic subject? What was your relationship like with your double? Screenshot from BBC Radio 4. Listen now on BBC Sounds.

33:53Justin Baldoni:We focus on the part of the internet that most people don't know about. It's called the dark web. Undercover in the furthest corners of the dark web, US special agents are on a mission to locate and rescue children from abuse. Move in now. Police! From the BBC World Service, World of Secrets, The Darkest Web follows their shocking investigations. Listen on bbc.com or wherever you get your BBC podcasts.