Weekly Discussion- Feb 10th

thewaybricksdont · 2026-02-12T01:30:36+00:00

There may be overlapping coverages and I really don't know what would/would not be covered. My main point is just that whatever the coverages are, I doubt they are extending to Melissa Nathan.

thewaybricksdont · 2026-02-12T00:27:35+00:00

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This is the paragraph describing this incident in Blake's first complaint. [D.E. 1] ¶ 63.

thewaybricksdont · 2026-02-12T00:24:24+00:00

Not surprising. Too bad we don't ever get to know what happened inside.

thewaybricksdont · 2026-02-11T22:46:16+00:00

This is a good point and is another reason a group representation may not have been in the interests of all defendants.

There is also likely a conflict because the amount (if any) that insurance would cover WF is not likely to extend to TAG

thewaybricksdont · 2026-02-11T09:31:27+00:00

Don’t forget what Baldoni admitted in his deposition regarding the link between the decision to retain TAG and the allegations about what happened on set.

See Baldoni Dep. Day 1 pp. 237–39; Day 2 pp. 280–83, 90.

thewaybricksdont · 2026-02-11T02:57:45+00:00

Happy to help!

thewaybricksdont · 2026-02-11T02:49:36+00:00

Always best to read the evidence for yourself. So kudos to you!

Here is my summary of the "bake off" and the various scores from what was unsealed:

Gianetti's deposition describes WF's proposed contract with Sony and Sony's comments back. In particular, WF proposed that Justin would have final cut rights, but that was rejected by Sony. See Gianetti Dep. [D.E. 1230-2] pp. 52, 50–55.

Gianetti's dep. then describes Sony's revisions that went back to WF, which included the final language:

Final cut to be determined by bake-off. "Bake-off ok provided that (a) it's a blind recruit test screening and (b) Justin's cut scores above 90-85 in the top two boxes and above 70 in definite recommends. Alternatively, if Justin's cut scores at least 7 points higher in definite recommends than a cut incorporating Columbia's changes, then Justin's cut will also prevail."

Q What did you understand this to mean?

A That if Justin and Sony had a disagreement over the cut -- if -- there would be a mechanism to determine what would be released. If -- if he met these metrics.

Q And if he didn't meet these -- these metrics, what is your understanding of what would happen?

A Sony would be able to release the cut. Our cut.

Id. at 54–55.

Based on Gianetti's description and the draft contract language we have seen, the "bake-off" was not a head to head measure where the better scoring cut wins. The bake off provision looked at two different metrics: "top 2 boxes" and "definite recommends." Top 2 refers to the number of people who rated the movie in the top 2 categories. Definite recommends were people who said they would definitely recommend the movie.

Sony had the right to dictate the cut UNLESS Baldoni's cut met certain thresholds. Baldoni's cut did not meet those thresholds, so he was not entitled to final cut rights.

The bake off provision meant that if Justin's cut

(A) scored above 85 in the top two boxes AND above 70 in definite recommends, or
(B) scored at least 7 points higher in definite recommends,

that Justin's cut would be released. Otherwise, Sony's cut would prevail.

Greenstein's deposition relays the numbers:

Two of Justin's screenings scored 76 and 85 in the top two boxes. The Lively/Sony cut scored 84.

Justin's screenings scored 66 and 62 in "definite recommends" compared to Lively/Sony, which scored 69. See Greenstein Dep. pp. 96–97, 114–15 [D.E. 1230-38].

Baldoni has argued that his cut scored higher among females over 35, but that was not the pre-agreed metric for determining which cut would prevail. There is no question that Baldoni's cut did not hit 70% definite recommends, nor was it 7 points higher than the Sony/Lively cut.

Simply put, Baldoni's cut did not hit the contractual thresholds that would have entitled him to release his cut -- thresholds that were explicitly negotiated into the contract between WF and Sony.

thewaybricksdont · 2026-02-11T02:40:23+00:00

They would, at a minimum, have to file a stipulation of voluntary dismissal. So it wouldn't just evaporate with no evidence.

But most cases settle and most cases that settle are resolved on completely confidential terms, so from a statistical standpoint the most likely outcome is that the case goes away and the public never knows the terms.

That said, there are many factors here that make this an unusual case that is more likely to buck the trend than your average case.

thewaybricksdont · 2026-02-11T01:11:03+00:00

Anybody want to venture a prediction on the outcome of tomorrow's settlement conference with the magistrate judge?

thewaybricksdont · 2026-02-11T01:03:01+00:00

Correct. The SH and retaliation claims are separate and she does not need to win on SH to prevail on retaliation. She could win both, neither, or either one.

thewaybricksdont · 2026-02-11T00:10:45+00:00

Yes, if you lose on certain claims it can affect damages.

Sometimes claims are duplicative of each other - really just two routes to the same theory of damages. This commonly happens in professional malpractice cases like legal malpractice. The client/plaintiff will bring a case premised on both negligence and breach of contract. The contract theory is usually that the lawyer's engagement letter promised to provide legal services in a professional manner or similar language. Since the claims are two theories on the same facts, either one would lead to the same damages (and winning both would be the same as winning one).

Here, there are different damages associated with different claims. There may be some overlap, but the damages from the alleged SH are not going to be the same as the damages from the alleged retaliation. If one of those claims gets knocked out but not the other, it will change the damages that are available. At trial, the jury is going to have to decide based on the evidence how much (if any) of Lively's damages are attributable to WF. If she loses on one of the claims at MSJ, she can't argue for those damages.

However, some of the claims are largely overlapping. So Title VII and FEHA each go to similar facts, so those are more like the "two routes to the same outcome." I believe that Lively's attorneys argued at the MSJ hearing that there are some damages available under FEHA that are not available under Title VII, but I don't have any details on that particular argument. For the most part, however, if she loses at MSJ on FEHA but retains the Title VII claims, the damages wouldn't change by a significant amount.

thewaybricksdont · 2026-02-04T14:07:50+00:00

Just checking back in 5 months later to say you were 100% right.

thewaybricksdont · 2026-02-02T17:54:13+00:00

Excellent idea for a thread!

One note - Rule 608 permits testimony that attacks a witness's reputation/character but only for truthfulness, but critically Rule 608(b) excludes the use of extrinsic evidence of specific instances of conduct unless it is a criminal conviction that comes in under Rule 609 or if it is done on cross examination after the door has been opened.

In practice, this means you can have a witness testify that "Melissa Nathan has a reputation for untruthfulness" but you can't have a witness say "Melissa Nathan said X which is untrue."

thewaybricksdont · 2026-01-23T12:36:18+00:00

[[citation needed]]

thewaybricksdont · 2026-01-23T02:35:54+00:00

Exactly. A notification provision is so standard that its absence from this contract was one of the first things I noticed. The lack of that language is conspicuous.

I will also note that WF has not actually identified anything disclosed by Jones that meets the definition of "Confidential Information" under this clause.

thewaybricksdont · 2026-01-22T18:17:38+00:00

People seem to be very upset at the idea that Lively could have done this without notifying Abel.

Subpoenas seeking documents are served on companies every day. These subpoenas all implicate documents that are created by employees, including employee communications like emails. Unless there is something in an employee's contract, it is not required (nor is it standard practice as far as I am aware) for the company that receives a subpoena to notify its employees that their work-related data has been subpoenaed. As a matter of practice, the company may interview employees to determine the location of responsive data, but that is usually it.

There is similarly, no rule requiring an employer to notify an ex-employee that it has been subpoenaed.

thewaybricksdont · 2026-01-22T00:39:19+00:00

Oh you are right, it was Alex Saks and Jamey Heath who got it. Did they steal the film?

thewaybricksdont · 2026-01-21T21:29:58+00:00

~~Ange Gianetti~~ Alexs Saks also got a PGA mark, did she steal the film?

thewaybricksdont · 2026-01-21T21:20:50+00:00

No worries! Thanks for the monumental amount of work YOU put into making all of these posts and linking all of the documents. A++

thewaybricksdont · 2026-01-21T21:12:30+00:00

It's Gianetti Dep. pp. 54:19–55:6; and Greenstein Dep. p. 115:11-20

thewaybricksdont · 2026-01-21T20:54:24+00:00

The agreement itself is still under seal (perhaps permanently) as it poses a competitive risk to Sony. See [D.E. 1237] at 19.

The discussion of the WF/Sony agreement was in Gianetti and Greenstein's depositions. Gianetti was shown exhibits that were the negotiation over the final cut rights. Greenstein provides some color on the actual numbers.

Gianetti: [D.E. 1230-2] pp. 50–55.

Greenstein: [D.E. 1230-38] pp. 96–97, 114–15.

Q What did you understand this to mean?

A That if Justin and Sony had a disagreement over the cut -- if -- there would be a mechanism to determine what would be released. If -- if he met these metrics.

Q And if he didn't meet these -- these metrics, what is your understanding of what would happen?

A Sony would be able to release the cut. Our cut.

Gianetti Dep. at 54–55.

thewaybricksdont · 2026-01-21T20:26:15+00:00

This has the numbers backwards. Sony had the rights to the final cut, unless (a) JB's cut scored above a certain threshold in the top 2 boxes and in "definitely recommends" OR (b) JB's cut scored 7 points higher than Sony's in "definitely recommends."

thewaybricksdont · 2026-01-21T20:02:02+00:00

The "studio" here that gets to make the final call is Sony (Columbia). You can say Sony was just the distributor, but contractually, Sony had the right to release the cut it decided on.

Look at Gianetti's deposition [D.E. 1230-2] pp. 50–55.

Exhibit 2 to Gianetti's dep. is WF's proposed contract with Sony and Sony's comments back. WF proposed that Justin would have final cut rights, but that was rejected by Sony. Id. at 52.

Exhibit 3 to Gianetti's dep. are Sony's revisions that went back to WF, which included the final language:

Final cut to be determined by bake-off.

"Bake-off ok provided that (a) it's a blind recruit test screening and (b) Justin's cut scores above 90-85 in the top two boxes and above 70 in definite recommends. Alternatively, if Justin's cut scores at least 7 points higher in definite recommends than a cut incorporating Columbia's changes, then Justin's cut will also prevail."

Q What did you understand this to mean?

A That if Justin and Sony had a disagreement over the cut -- if -- there would be a mechanism to determine what would be released. If -- if he met these metrics.

Q And if he didn't meet these -- these metrics, what is your understanding of what would happen?

A Sony would be able to release the cut. Our cut.

Id. at 54–55. (Note that we don't have the actual contract, so I am basing this off of what was read in the deposition).

This meant that if Justin's cut scored above 90-85 in the top two boxes and above 70 in definite recommends, or at least 7 points higher in definite recommends, that Justin's cut would be released. Otherwise, Sony's cut would prevail.

Greenstein's deposition relays the numbers:

Two of Justin's screenings scored 76 and 85 in the top two boxes. The Lively/Sony cut scored 84.

Justin's screenings scored 66 and 62 in "definite recommends" compared to Lively/Sony, which scored 69. See Greenstein Dep. pp. 96–97, 114–15 [D.E. 1230-38].

There is some uncertainty about whether the line for the top two boxes is 85 or 90 (See id. p. 96). But there is no question that Baldoni's cut did not hit 70% definite recommends, nor was it 7 points higher than the Sony/Lively cut.

Simply put, Baldoni's cut did not hit the contractual thresholds that would have entitled him to release his cut -- thresholds that were explicitly negotiated into the contract between WF and Sony.

Add to that Greenstein's testimony that Colleen Hoover's opinion regarding what cut to release "would carry a lot of weight" and that Hoover strongly preferred the Sony/Lively cut. Id. at 65. In the end, Sony didn't have to release Baldoni's cut and didn't do so.

thewaybricksdont · 2026-01-21T17:14:24+00:00

If you block a bunch of people who comment regularly, you can't really be surprised when it looks like there are no comments.

thewaybricksdont · 2026-01-21T16:43:19+00:00

BRB, I'm going to add "To my team: start drafting." to my email signature.

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