Variety: Blake Lively ‘is attempting to withdraw’ her claim of emotional distress

Less than two weeks ago, Justin Baldoni’s legal team ended up dropping their documents subpoena on Taylor Swift. It was a bizarre move and the only reasonable explanation came from a Deadline exclusive, which was that Baldoni’s team dropped the subpoena because Taylor turned over all of the relevant documents. Baldoni’s team wanted text messages and emails between Taylor and Blake Lively, and anything related to It Ends With Us. Since that happened, there’s been a vibe shift (imo). This might be part of the vibe shift – apparently, Blake Lively is now refusing to turn over her medical and therapeutic records as part of her “emotional distress” claim. Baldoni’s lawyers also say that Lively is trying to withdraw her “emotional distress” claims, even though her lawyers insist that the claims are still part of the case.

Blake Lively is attempting to withdraw her claims against Justin Baldoni of intentional infliction of emotional distress and negligent infliction of emotional distress. The move comes after Baldoni’s legal team sought discovery that included her medical records in their efforts to defend the “It Ends With Us” director against her claim that she suffered “severe emotional distress and pain, humiliation, embarrassment, belittlement, frustration and mental anguish.” Lively’s attempt to withdraw the two claims surfaced in a filing Monday by Baldoni’s attorneys, who are seeking to compel the actress to sign a HIPAA release for access to therapy notes and other relevant information.

“Instead of complying with the Medical RFPs, Ms. Lively’s counsel recently advised us, in writing, that Ms. Lively is withdrawing her [infliction of emotional distress] Claims,” today’s filing states. “However, Ms. Lively has refused the Wayfarer Parties’ reasonable request that the withdrawal of such claims be with prejudice. She is only willing to withdraw her claims without prejudice. In other words, Ms. Lively wants to simultaneously: (a) refuse to disclose the information and documents needed to disprove that she suffered any emotional distress and/or that the Wayfarer Parties were the cause; and (b) maintain the right to re-file her IED Claims at an unknown time in this or some other court after the discovery window has closed.”

Lively’s lawyers Esra Hudson and Mike Gottlieb called the filing “a press stunt” and noted that they are merely “streamlining and focusing” her case. “The Baldoni-Wayfarer strategy of filing retaliatory claims has exposed them to expansive new damages claims under California law, rendering certain of Ms. Lively’s original claims no longer necessary. Ms. Lively continues to allege emotional distress, as part of numerous other claims in her lawsuit, such as sexual harassment and retaliation, and massive additional compensatory damages on all of her claims.”

The court will now need to decide whether to compel Lively to turn over the information on her mental health, which she has sought to avoid, or dismiss the two claims with or without prejudice. It is standard procedure in cases alleging physical or emotional injury for the defense to access the plaintiff’s medical records that would shine a light on the root and scope of alleged distress. What is unusual is for a plaintiff to abandon the claims midstream given that it is well known heading into such a lawsuit that medical records will be an unpleasant but inevitable part of the discovery process.

The filing, addressed to Judge Liman in U.S. District Court Southern District of New York and signed by Baldoni attorney Kevin Fritz, offers a window on a back and forth that appears to have played out between lawyers for the dueling sides. It continues: “Ms. Lively cannot have it both ways. If Ms. Lively wants to withdraw her frivolous IED Claims, the Wayfarer Parties are entitled to a dismissal with prejudice to ensure they will not be re-filed. If Ms. Lively is unwilling to stipulate to the dismissal of her IED Claims with prejudice, then the Wayfarer Parties will continue to defend against them, and she must produce her medical information and documents as set forth herein.”

“By alleging that she suffered physical and emotional injuries, Ms. Lively has placed her physical and mental condition at issue and, in turn, must produce relevant information and documents [including] psychiatric records,” today’s filing states. “In other words, Ms. Lively has waived any doctor-patient privilege.”

[From Variety]

I’ve already seen people suggest that Blake is trying to avoid having her medical records released publicly by Baldoni’s team. That’s understandable given the circumstances, but it’s not a real legal strategy. In this siloed situation, Baldoni’s lawyers are correct: Blake made her physical and emotional distress a key part of her lawsuit against Baldoni. Baldoni’s team has every right to examine her claims. If Blake is still making claims of emotional distress (which her lawyers insist she is still doing), then what are Blake’s lawyers doing here?

Photos courtesy of Avalon Red, Cover Images.