Blake Lively v Justin Baldoni: trial evidence battle and what the jury may not hear

0:08Shaun Kent:Hello and welcome back to Fame Under Fire from BBC Sounds with me Anoushka Mutanda-Dougherty. Just a month left until I'm in the courtroom in the Southern District of New York giving you daily updates on the Blake Lively Justin Baldoni trial. Just to recap, we told you last episode the sexual harassment claims have been dismissed but three claims survive including retaliation And Justin Baldoni and the rest of the defendants continue to deny these claims. Now, we have gone over in detail which evidence both sides want in front of that jury. But over the weekend, we got to see what they absolutely do not want brought up in court and who they do not want taking the stand.

0:42Shaun Kent:And it is fascinating. Joining me to break this all down is our resident trial attorney, Sean Kent from South Carolina. Hi, Sean. Hey, Anushka. How are you guys doing? I mean, our relationship has been tested in the past couple of days, hasn't it, Sean? I learned a very valuable lesson. Don't have a secondary job when you're dealing with Anushka because she needs to make sure things are going on point for a specific amount of time. I have learned a valuable lesson. I would like to apologize. I will make sure that secondary job does not get into the way anymore of Fame Under Fire. I said the name correctly.

1:14Shaun Kent:Oh, he knows the name of the podcast. It's only taken 107 episodes. But, yes, I'm used to you picking up the phone after one ring, and he wasn't responding to me yesterday. And I was like, oh, my God, he's dead. And turns out he was just in court. But, you know, Sean, I was freaking out because there's nobody I can go through. Motions in limine with my least favorite thing to say, but most favorite thing to read. This is what we got filed in the docket. They are so revealing. But can you just remind everybody what on earth the motion in limine is? So they filed these motion in limine, which is just a fancy way to say we want to limit what the jury hears, because some of this stuff would cloud their minds so badly that one of the sides believes they would not get a fair trial.

1:55So they filed these motion and limine early and say, Judge, don't let the jury accidentally hear any of this stuff because once you hear it once, you can't, the phrase we use, unring the bell. And so that's why they filed these motion and limine early so nobody can hear this stuff in front of the jury.

2:10Shaun Kent:So we have 19 motions and limine filed by the defendants and we have eight motions and limine filed by the plaintiff, Blake Lively. we won't go through them all because we're going to be here all day and as we have established allegedly Sean has another job but we have picked some that are going to be of particular interest and a lot of this is ground we have covered before we are may I say predicting these legal arguments now we've got the crystal ball but um we're going to alternate this is fair we don't like one side more than we like the other contrary to what's going on on social media we're going to start with Blake.

2:44Shaun Kent:Now this is motion in limineat number eight. Do you guys remember this video? First of all, congrats on your little bump. Congrats on your little bump. So the document asked the court to preclude defendants from calling non-party Shashti Floor as a witness. I apologise if I'm not pronouncing that. I did watch the video of her pronouncing her name many, many times. Shashti Floor. Now she is the journalist in that junket who says, congratulations on your little bump to Blake Lively. So the document carries on it says her sole connection to this litigation is that on august 10th 2024 a day after the film's premiere and as defendants harmful narrative concerning miss lively was gaining traction online miss floor posted to her youtube channel a 2016 press junket interview she conducted with miss lively that's the video you just heard which the doc the document the motion in limini lays out was titled quote the blake lively interview that made me want to quit my job Miss Floor, it continues, has since publicly characterized the interview as a, quote, traumatizing experience and maintains that her decision to post the eight year old video in 2024 was unrelated to Mr.

3:48Shaun Kent:Baldoni or it ends with us. It goes on saying, quote, since August 2024, Miss Floor has posted hundreds of videos on her YouTube channel. That's correct. We have checked this. Critical of Miss Lively and sold merchandise through her Etsy shop containing disparaging messages about Miss Lively and expressing support for defendants. Okay, so one of the reasons they don't want this going forward is because they say Miss Floor's testimony will inevitably echo, Sean, you've said this before, you've said it since the start, inevitably echo her numerous public statements describing Miss Lively as a rude person and exuding, quote, mean girl energy.

4:23Shaun Kent:Now they say that this is inadmissible under 404A. I'm getting flashbacks to Diddy. Here it comes. Here come these 404s. Sean, what's 404A? When we talk about 404A evidence, and it goes through a bunch of litany of rules, it's federal rules, 404, 404A, 404B, all of these rules are designed for one thing very specifically. We are trying to keep impermissible character evidence away from a jury. And that's what that rule specifically starts out for. We want a jury to decide a case based upon what Blake believes happened and what the other team says did not. We don't want extraneous information from the outside.

5:04So 404 evidence specifically says the character of somebody is almost always impermissible. And if you go back to what we have talked about, Anushka, before, what we also don't want to have is a layperson, a regular person, and this goes into some of Blake's motions also, give opinion testimony. We only allow opinion testimony to be suggested by an expert.

5:28Shaun Kent:Okay, so this makes sense to me in the way that she could get up there and speak to her character and then that would make the jury think she's more or less likely to act in a certain way and then you're basing that off of an individual's experience and opinion. However, her point that she had nothing to do with the defendants, she had nothing to do with it ends with us or with Melissa Nathan or any of them. And she posted this organically. Doesn't that directly speak to the defendant's argument that this wasn't a retaliation campaign? This stuff came up naturally. It's not our fault that you did a bad interview.

6:00Shaun Kent:And she's going to testify that she posted of her own accord. And that's why we talked about the exceptions, because then when you start with 404A, you usually can't get into character. there's other rules 607 608 609 that allow someone's reputation there in the community to sometimes come in and that's what justin baldoni side is saying is this isn't her opinion this is blake's reputation in the community i thought it was interesting and i hadn't immediately thought about this and when i was reading the document they lay out okay she might get up there and testify that she posted this organically which doesn't speak to a retaliation campaign but actually what we need to prove is that they bolstered the video not that they caused her to post it we need to show that she posted it after the film came out it blew up it gained traction at like an unprecedented rate and I was like that's a it's a niche interesting distinction in the retaliation campaign absolutely and that's why it's pretty clear why Blake wants that to stay out because and that's one of the things and I'm glad we brought up 404 because we talk about it And you've said it, propensity evidence.

7:08You talk about prejudicial effect on certain things. And is it probative? And those are the phrases that we lose that the court does, a balancing test. And when we talk about this balancing test, Anishka, what they do with almost all of this evidence is they start out with 404 evidence. They say this should or should not be allowed in. But after we do that, we're going to get into what's called a 403 balancing. and we're going to check and see if we allow this stuff in, is it prejudicial? And is the prejudicial effect of allowing her to say that Blake was a mean girl before any of this stuff happened, does that overtake the probative value that it would give to the jury, the jury needing to have information to make a decision?

7:55And that's a balance that every court has got to decide when they're trying to admit this type of 404A evidence in front of a jury.

8:02Shaun Kent:Okay, let's go to the defendants. This one speaks directly about Justin Baldoni. This is motion in limine number three. It says, quote, Lively, Blake Lively may attempt to introduce evidence concerning her claim that Baldoni admitted to sexually assaulting other unspecified women. Defendants respectfully submit that Baldoni never made any such admissions and never engaged in such conducts. Regardless, Lively's inflammatory evidence should be excluded. They continue saying, quote, any sexual harassment that Lively may seek to prove in this case pales in comparison to allegations of sexual assault for these reasons.

8:34Shaun Kent:Evidence related to sexual assault should be excluded here. Doesn't this all come down to what the actual evidence is that she's going to present? Because there they're saying, you know, he completely denies this. But we don't have a sense of whether it's going to be hearsay or whether she's got, you know, something a bit more substantive to put in front of the jury. And this one requires a little bit deeper of a, I don't want to say a deeper dive, but a more complex analysis. One, the first question you have to make the decision of is Justin Baldoni still a defendant? And remember, most of those cases making him as an individual defendant have been left out.

9:09Or is he just a witness? Now, let's assume that he is just a witness. What they are saying is if you are a witness, the only thing that should be allowed to come in in front of the jury is your credibility for truthfulness. Because when you take the stand, what the jury should be able to judge is if you're a liar or not, because you're giving information. And so they should bring out anything that could show that Justin could or could not be a liar. So Blake should be able to go through every time they think he has lied about something. Justin's team is saying, you're trying to bring in things that go into, remember our 404 analysis, that go to my specific character.

9:47And that is specifically what 404 evidence does not allow. Whether it's true or whether it's not true, you should not be able to get into character information. And two, we're saying it didn't happen. And three, even if it did happen, it has nothing to do with your retaliation claim because you did not know anything about it at the time. The example I think I gave to you the other day is we have a lot of self-defense claims going on in South Carolina. I've had some before. And so what ends up happening is we get the discovery. We get all the evidence. And we find that somebody has shot and killed somebody else.

10:23And later in the discovery, we discover the person they shot was wanted for murder, had assaulted four or five other people at the same time, has a prior criminal record for shooting four or five people. but the problem is our client didn't know these things at the time. So even though this person is potentially a bad person, you still have to show that the person who shot them at the time knew these things, and so the jury should know it. If you don't know it, you just can't bring in the fact that they're a bad person. And that's what Justin's argument is. True or not true, you didn't know all this stuff about me.

10:57Shaun Kent:The next one from Blake, this is motion in the mini number one, which is precluding improper character evidence and late opinion concerning Miss Lively's reputation. So we're going to talk about something that we've spoken about multiple, multiple times on this podcast. But it says, Throughout the case, defendants have insisted both in and out of court that the reputational harm Miss Lively suffered was not caused by anything the defendants did, but instead by an organic backlash to Miss Lively's own statements that relied substantially on unflattering conduct by Miss Lively from years past. It goes on to say they're trying to smuggle into evidence a combination of gossip, rumour, hearsay and speculative lay opinion in lieu of admissible evidence.

11:37Shaun Kent:Their objective is to attack Miss Lively with impermissible character evidence while misleading the jury into believing that their curated laundry list of old events must have played some role in the overwhelmingly negative shift in public sentiment against her in August of 2024. Now, we have covered in detail the plantation wedding. It says alleged plantation wedding, but it's not alleged. They did have a wedding on a plantation. Boone Hall, round the corner from you, Sean, as you know. But I didn't know she also ran a website called Preserve, which critics have said romanticised the antebellum South, which is a period of history in the US before the Civil War, pre-emancipation, a society that was defined by slavery and horrific violence.

12:14Shaun Kent:Now, she also did a photo shoot called The Allure of the Antebellum. So she's facing criticism for that. And that is what that article, Blake Lively Wants to Return to a Time of Cute Hats and Slavery, is about. And all of this evidence, all of these exhibits, they want kept away from the eyes of those jurors. and then the article where she is alleged to have used a slur against the transgender community in something that she said. And they're saying this is just going to prejudice a jury against her. We've just gone over that, Sean. I completely understand bringing these exhibits in when it comes to a defamation claim because her cognizable damages, that's up for dispute.

12:51Shaun Kent:Because have you defamed her if her reputation was already so bad? But does that still stand for retaliation? claim as well, because the defamation is gone. Do you get what I'm saying? Absolutely. And there's two ways to answer that. One that goes to damages. If your reputation was already damaged, how could we have damaged it anymore? So maybe we did do the retaliation, but you're not entitled to any damages because you are already damaged. And if you look at the words of the motion at Limitee, they specifically say they want to exclude lay witness testimony. So when they're saying lay witness testimony, this is what we talked about earlier, they're trying to exclude, here's my phrase, John Q.

13:30Public from getting on the stand and said, Blake is a bad person. This is the opinion of her. Because here's the thing. If you take those evidence and just randomly put it on, you're saying, well, you guys must see that people hate her. Well, that's an opinion. And remember, we talked about this. Opinion testimony is not allowed in front of a jury. To get in front of a jury, you must be qualified as an expert under Rule 702 in federal procedure. And what an expert is, is somebody who has a heightened sense of credibility. They have certain knowledge, they have certain training, they have certain skill that makes them.

14:05You remember we went through the Diddy case. These people are trained as experts. And as an expert, what they're allowed to do is first they get qualified. You've gone to school, you've written books. You've done talk shows. You've testified before as an expert. Yes. The court now qualifies you as an expert. So then the person can look at the jury and says, in my expert opinion, based upon qualification, she's a mean girl. Without that, you can't. But she's going to have to testify. And when she testifies, her credibility comes with her and they're just going to ask her about it.

14:37Shaun Kent:One thing that you just said that was like, is there a world in which she could prove that there was a retaliation, there was retaliatory activity, there was a smear campaign, but she cannot prove her cognizable damages because they've managed to convince people that her reputation was shot anyway. So she can kind of win-lose, win-lose, lose-win. That could happen? It happens all the time. We fine for the plaintiff and award the sum of$1. Get out of here! That has happened. That they're saying, you are right, and not to jump ahead, but now you're starting to understand these motion and limites.

15:10Isn't there a certain motion in Lemony? Old Blake says, I don't want the jury to know how much money we got.

15:15Shaun Kent:Yep. And now you're starting to put together what the lawyers are doing. The same analysis you're doing is what the lawyers are doing. Because wait a minute, they could find for us and be like, you don't need this money. Or you're not entitled to this money. Something happened to you and you were not damaged. Your reputation was awful before that. I mean, all of that goes in. Now you're starting to understand the purpose of the motion in Lemony. It's a chess match that both sides are playing because they're doing exactly what you're doing right now, Anushka. They're playing the case out and they're saying, what will happen if this happens?

15:45Shaun Kent:Yeah, we're going to get to what you just said because I'm going to motion in limine number seven from the defendants. The document says the wayfarer parties anticipate that plaintiff will seek to introduce excerpts of a secretly taped 38 minute recording of an August 29th, 2024 conversation between a third party and Steve Sarovitz, in which he states an intent to vigorously defend his studio, Wayfarer, against any claims brought by plaintiff and or her husband. Now, this is, it continues saying, in the soundbite, Sarovitz states in response to a question from Miss Ayub, that's who is the third party, about protecting his studio.

16:18Shaun Kent:And he says, quote, I just want to give a warning because it's quite graphic language. Now, he says, quote, I will protect the studio like Israel protected itself from Hamas. There were 39 ,000 dead bodies. There will be two dead bodies when I'm done. and so not dead but dead to me you're dead to me so that kind of dead but dead to a lot of people if they ever get me to that point then I'll make it worth their while because I'm going to spend a lot of money to make sure the studio is protected but I don't think we'll go there the document continues saying this statement has nothing to do with the merits of the case plaintiff has cynically omitted the qualifying phrase quote also not dead but dead to me you're dead to me so that kind of dead the recording is irrelevant in that it does not make any material facts of the case more or less likely.

17:00Shaun Kent:The statement does not relate to plaintiff's claims for sexual harassment and or retaliation. Obviously, sexual harassment is struck anyway. I just want to fact check that a little bit because in her second amended complaint, she does include the quote where he says, also not dead, but dead to me. But my first question is, I didn't even know you could bring up secretly recorded stuff. I would have assumed that was illegal. Great point. And so we have to look at when we're talking about secret recordings, what state that we're dealing in. Here's our little law lesson for today. Depending on your state in the United States, each state is either a one party or a two party recording state.

17:33In a one party state, what that means is one of the people in the room have got to know that they're recording the statement and they don't have to tell anybody else. And so if you're sitting in a meeting with your boss and you want to record him, you don't got to tell him. You can hide a phone, you can hide a recorder, and you can use it as much as you want. New York is a one party state. New Jersey is a one party state. California is a two-party state, which means everybody in the room must know that they are being recorded. So you must tell everybody they're being recorded. All this means is you cannot on your own take a recording, though, if you're not a party to the conversation at all.

18:10You cannot put a recorder in the room and leave. Finally, the last part of analysis is so long as you are not part of the party who illegally did the recording, you probably get to use it. So in other words, if you didn't do anything illegal in the action of getting it and you said I had nothing to do with it, then you probably can use it. So let's say, Anushka, you are having a meeting with your higher ups and you're doing it in New York. You leave the room and you put a recording in there to listen to what they are saying. You come back later and grab that recording like, aha, I got you. Well, technically, that would be illegal.

18:53You then take that conversation and you sell it to TMZ and they publish it. Well, TMZ hasn't done anything wrong and they can do whatever they want to do with it.

19:01Shaun Kent:You're pretty good at this law stuff, Sean. But what I want to say is, and I want to point this out, there is no debate about whether he said this. There's no debate about whether Sarovitz, who is the billionaire backer of Wayfarer and funded, you know, funds that production house. There's no debate about whether these words actually left his mouth. So I completely understand, like, as you've just walked us through, the probative value versus the prejudicial something or other on the jury. Wonderful. You hit the nail on the head. Exactly. Because of the gratuitous nature of the language and because of the offensive references that a jury might just immediately go, this is a terrible person.

19:41Shaun Kent:And that's why the defendants want this taken out. One of the reasons why. However, isn't there a school of thought that it is absolutely relevant to retaliation because he is literally talking about his monetary capability and desire to make them, as in Blake and Ryan Reynolds, dead to people? which seems to mirror the ideas of what a smear campaign or retaliatory activity is. So this is the legal analysis both sides are going through. And I'm loving you're doing this because now you're starting to understand good lawyers prepare for cases, great lawyers, which what it sounds like both of these sides are doing, is going through every single thing that can come up in front of the jury, trying to figure out what can hurt, and trying to figure out a way to keep it out before it gets in front of the jury.

20:27Shaun Kent:There's also another motion in this, motion number eight, which is on the side of the defendants, where they ask that mentions of Steve Sarovic's wealth and payments of the defendant's legal fees be precluded as evidence. They say his wealth is irrelevant to the plaintiff's claims and that Sarovic's financial status threatens to prejudice the jury. In the current political climate, the term billionaire may have negative connotations to some, perhaps many, potential jurors. For similar reasons, payment of or responsibility for legal fees and costs incurred in defence of Lively's allegations should be precluded as it lacks any relevance to the claims to the merits of the plaintiff's claims.

21:03Shaun Kent:But my question is, if Blake's team tried to argue that the countersuit that was filed by Baldoni, that$400 million countersuit, which the judge said was making claims that were legally frivolous and factually baseless, was part of the retaliation campaign because it was only filed in order to get negative publicity out there about her. and it turns out that their legal fees are being paid for by this man. Doesn't it become relevant, his financial status? Yes. And I think if I'm a betting man, what's going to happen is the court is going to keep both of their financial statuses out because they both have filed motions.

21:37He's like, we're not going to talk about finances from either side. I think what's going to happen, but you're not wrong. I think it is relevant. And I love we keep doing this. All of the evidence is relevant. Okay? All of it. That's why you keep going back to doing the prejudicial provative bar. You understand what I'm saying? because all of it's relevant. Everything you can say is relevant for the jury to hear, but we still keep going back to the prejudicial probative bar. And is it so necessary that we don't have to worry about the prejudice? And that's the question the judge is going to ask.

22:08But I think, and this one is going to be an easy one, I think the judge is going to let both of them talk about their finances or neither of them talk about their finances.

22:15Shaun Kent:Yeah, I should say that Blake Lively's motion in Limiting No. 4 asks that her and Ryan Reynolds' net worth and financial status be precluded as well. so nobody wants to talk about their money so another one this is motion eliminating number three we're not going to go into this because we've done this so many times but blake wants the references to nice pool that is a variant of deadpool in deadpool versus wolverine that is supposed to be woke deadpool that the internet and indeed the defendants have claimed is a mocking portrayal of justin baldoni she just had a baby too and can't even tell i don't think you're supposed to say that that's okay i identify as a feminist right she says just strike this out and they point to the judge's previous ruling saying this very well may be mocking justin baldoni but how do we know that ryan reynolds isn't mocking him for the sole reason that he thinks this man has ran a smear campaign against his wife but i was just i wanted to highlight that was in there because i know we went over that in great detail does the creation of the nice poor character show that actually they were bullying Justin Baldoni in I mean that was like a that movie made over a billion dollars so on the global stage but I want to get to this last one this has come up a lot I got a lot of questions about this is it true that Justin Baldoni is trying to preclude evidence of the alleged bad experiences of other women so yes this is actually motion limiting number one for the defendants is as lively seeks to introduce a broad range of other bad act evidence concerning the alleged experiences of seven other women it calls it a grab bag of awkward comments minor confrontations and perceived slights that would have been inadmissible even if lively sexual harassment claim proceeded to trial with a single exception lively was unaware of these other bad acts while working on the movie so because the sexual harassment claim is gone they're saying why are these seven women going to get up and testify if she didn't have contemporary knowledge of their complaints or their alleged instances of this that and the other when she filed that complaint so it can't speak to that good faith understanding that good faith belief except for jenny slate who played the sister of justin baldoni in the movie who she knew about the the comment that justin baldoni made about her her leather trousers which she said made her uncomfortable doesn't a lot of this come down to whether blake can prove she knew about stuff when she made that complaint?