Lively v. Baldoni 2 - "She Isn't Weird About This Stuff"

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:26 Thomas: To Gavel Gavel. This is episode two on Blake Lively and Justin Baldoni. Et al. et al. I'm Thomas.

0:00:34 Lydia: Lot of at alls. Yeah.

0:00:35 Thomas: That's Lydia. How are you doing?

0:00:37 Lydia: Doing all right.

0:00:38 Thomas: To get into it? Get this party started?

0:00:39 Lydia: Ready to get into it. Oh my God. Oof.

0:00:45 Thomas: This episode, I just want to take a step back for a moment. And really important to me, like good skepticism is really important for me. And objective is important to to me while also noting that objective does not mean not having a view that does not mean equal two sides of a thing or it doesn't mean that. But right now, so far, what we've told you is a very weird media hate storm on Blake Lively. Now, looking at that, I express very strong views that I thought most, if not all of that was very unreasonable. Reasonable I My view that I think is based on the evidence and is reasonable now I want to note though that that has nothing to do right now with Justin Baldoni so no matter how mean people were to Blake Lively on the internet and no matter matter how wrong people might've been on the internet, as of right now, that has no bearing on Justin Baldoni or the, or between these two celebrities. All going to kind of be on the same page as we go forward. So obviously we know that there is a dispute between the, these two, two actors, but so far we've only told you about that that very negative, know, you media hate storm. For all we know, it's completely organic, even though I think think it's bullshit.

0:01:47 Thomas: I'm not going to lie. I think it's bullshit. Mean that that in I think it is mostly hatred toward women embodied in people putting an electron microscope on someone's behavior to try to find things to criticize. And it's just easy to do that. It's very easy. Literally any human being, if you did that to them, you would find just endless things to criticize. I've actually been the subject of that online before in a much smaller way, obviously. It is deeply, deeply unpleasant. And you've ever had people do this fine tooth comb assassination of your character, it it might change your perspective on things. If you're somebody who maybe disagrees with my assessment that hate storm was kind of bullshit, let me tell you as having been the subject of that, again, much smaller degree, but it's the same principle. It was a bunch of right -wing assholes and misogynistic assholes who to find problems with every single thing I did and said. Find things that you're like, wouldn't have even occurred to me that you you could even consider that that was something and they will have formed a whole theory about how it's like a deliberate choice by

0:02:50 Thomas: You to do something bad. Like it's nuts. And point is that can be done to anyone. The fact that that is being done does not actually reflect on Blake Lively at all. I don't think, I think it is. You can make your judgments about how she acted in whatever video, but if we did that, if we applied that bullying electron microscope, to any human being, we accomplish that. It's very easy. All it takes is a bunch of people wanting to dunk on someone. It's incredibly easy. I'm just to say, it's just classic schoolyard bullying.

0:03:22 Lydia: A rewarding behavior to online right because then you're getting clicks then you're giving likes then you know you have the chance to go viral it's it's a very dangerous dangerous thing just that can kind of spiral out of control really fast mm

0:03:34 Thomas: It really sucks. So that's where stand now. That doesn't mean Baldoni had anything to do with it and it doesn't reflect on him at all as of the information we have right now in this moment in the podcast. I anyway, without all aside, let's progress the story and we'll move forward on this. We last left off, we teased the New York Times article that was was a Very Big Deal. Going to talk about that. We're gonna talk about some complaints. Uh, we're gonna get into all that after the short break. Uh, can support the show at patreon .com slash gavel pod. You'll find the entire Trump trial and some other bonus stuff that we've done, along with extra bonuses here and there that we'll do for this case as well. To everyone who supports the show. And you can also avoid any advertisements you might hear. So we'll step away for a quick break and then we'll get into it. So let's quickly discuss the flurry of events that happened. As we said last time, there's sort of relative quiet for like four months almost. Around August there, there wasn't much, I mean, there's stuff here and there, but for the most part, not much until the first thing that happens. We it's not public at the same time, Blake Lively files, uh, California civil rights department complaint, and that's on December 20th. We've spoken to an attorney who deals deals with a lot of the same stuff in California. So knowledgeable about this, very very specific. And that's one thing to non -lawyers that is important to have knowledge of kind of this, not only the area of law, but also the specific state. And California, especially, I mean, hard to say what state is is more unique, but California does have a lot lot of unique protections, a lot of unique discovery rules, rules of civil procedure, also anti -slap laws that are

0:04:26 Lydia: Department. Right?

0:05:11 Thomas: Very unique. I mean, so there's a lot unique stuff about California. Ultimately, this is in federal court now, as we'll get to, it's federal court under California law. So we're going to explain that at the time. But important spoke to a California attorney who works precisely in this area. And this is what you do. This is the sort of the procedure you take. You file with the California Civil Rights Department first, because a complaint about your workplace, just speaking generically, you to exhaust your administrative remedies before you get to sue, but our understanding is you also do the same thing with the federal government. We don't have that. I That haven't seen anywhere that we have like a federal version of the complaint. I don't know if the, You have to do one or if it's just like a checkbox when you're filling out the civil rights department complaint. But one way or the other, you have to get a right to sue letter from from the Civil Rights Department and also the the EEOC if, if you're suing federally.

0:06:02 Thomas: So, right. There's So two those layers. You could just sue in California and not worry about anything federal. You could just sue in it federal in court. You this kind of stuff, you're often trying to find every single possible avenue you might have. Blake Lively has sued in both. Looked into this a lot. It's kind of interesting. If you file a civil rights department complaint, you imagine most just like your average, you Joe Blow or whatever, like your average employee is going to use this if they are facing any sort of, you know, abuse, harassment, anything like that on on the job site, we're you talking about it in a very specific, like celebrity film set, you context, but that's obviously like the exception, you know that's going to be the more rare thing. Most system is kind of primarily looking at is basic workplace stuff and as such they're of the time you're not going to have high -powered attorneys, etc., etc. So the civil rights department can take up your complaint and do that investigation for you and there's a process there or or you can kind of opt out of that and just request a right to sue so that you can just go straight to the court. Blake Lively did that and she received the right to Sue letter same day. Understanding is that's pretty standard. This kind of complaint, that civil rights department complaint is completely confidential unless you share it. There, if she filed this, there would be no There's no reason anyone knew unless she shares it with somebody. Not like anyone would have, you seen this randomly or there's not, like, a public docket of these. New York Times article that I've we've been kind of referencing came out on December 21st. So the next day from when that CRD complaint was filed. Right when that happens, I mean, this is all a bunch of events in rapid succession here. WME drops Baldoni. 2020, Liz Plank quits the Man Enough podcast. That was the kind female co -host of that podcast. She's interesting in her own right, but she quit couple like of days after that. Been really trying to figure out the best way to go through this for everybody. I'm going to just state roughly what the New York Times article covered. Then we're going to jump a bit ahead, but you'll see why to Blake Lively's, not complaint that kind of has everything. So rather than like give you a bit of it that's in the New York Times and then a bit of it, that's the CRD complaint and then, you know, and then like, rather than do all that, we're just going to jump to, she eventually filed in federal court on December 31st. So 10 days after that New story, York times there's, is really nothing too different from the CRT complaints. Pretty much the same. Name. You just have to, you know, you obviously have to do different things legally. We're going to work from that. Now, the New York Times article that people have likely heard of, but if not, is called We Can Bury Anyone Inside a Hollywood Smear Machine. Messages detail an alleged campaign to tarnish Blake Lively after she accused Justin Baldoni of misconduct on the set of It Ends With Us. It's by Megan Toohey, Mike McIntyre, and Julie Tate. As you heard the The title of the article and a lot of the focus is on this PR campaign. I'm going to set that aside for now. I think it'll make more sense to talk about what ultimately led to that, allegedly, and talk about the alleged misconduct on set and just focus on that first. Then we can later go through the PR thing. Think It'll be helpful. I'll just read like the first few paragraphs of the New York Times article, and then we we can go over to the complaint to get kind of a full picture. Because the article, obviously, it's, length. It's not like super long. The complaint is 93 pages. So it's a lot. Obviously we don't have to go through it paragraph by paragraph, but I'd rather just get all the claims in one place of misconduct, you rather than like do the few that are highlighted in the New York Times and, you Know, and then kind of mismatch. So that's what we're going to do. I'd much rather listen to your amazing voice than mine, so why Why don't you read the first few paragraphs of article?

0:06:02 Lydia: If you intend to do anything under like Title VII, for example. Yeah.

0:09:37 Lydia: Last summer, as the release of It Ends With Us approached, Justin Baldoni, the director and a star of the film, and Jamie Heath, the lead producer, hired a crisis public relations expert. Shooting, Blake Lively, the co -star, had complained that the men had repeatedly violated physical boundaries and made sexual and other inappropriate comments to her. Their studio, Wayfarer, agreed to provide a full -time intimacy coordinator, bring in an outside producer, and put other safeguards on set. A side letter to Miss Lively's contract, signed by Mr. Heath, the studio also agreed not to retaliate against the actress. But by August, the two men, who had positioned themselves as feminist allies in the Me Too era, fears that her allegations would become public and taint them, according to a legal complaint that she filed Friday. Day. Claims that their PR effort had an explicit goal to harm Ms. Lively's reputation instead. Her filing includes excerpts from thousands of pages of text messages and emails that she obtained through a subpoena. And other documents were reviewed by the New York Times.

0:10:39 Thomas: That's a very crucial two sentences that we're going to come back to a lot. To repeat, her filing included excerpts from thousands of pages of text messages emails that she obtained through a subpoena. Major pin in that. I wish there's so many branches off that we're going to not do for now.

0:10:54 Lydia: Know. I wish I could like, highlight um, things in, in, an audio medium, um, access

0:10:59 Thomas: But this is an important sentence, too. Important to keep in mind. These and other documents were reviewed by The New York Times. So there are certain texts that are included in this New York Times article. But one thing a lot of people, I guess, missed or something is that that's not all The New Work Times had. The New Rock Times had everything from and then use their their discretion in their reporting to figure out what they wanted and needed to include. Those first few paragraphs there give you, you the summary of it. And we're going to again, we're gonna set the PR thing aside for a moment, and we're just going to focus on the alleged conduct, alleged misconduct, which read, which was during shooting, you know, she had complained that the men had violated, et cetera, et zebra. So rather than just take that small picture of it, we're going to skip to the federal complaint that she did file 10 days after this This article came out so that we just have that all together in one place. You're not at all experienced in looking at legal complaints, they can be very compelling. Each person gets you to tell their version of the story with their version of the facts, their examples of stuff.

0:11:18 Lydia: To anything that they would have essentially the Lively team. Yep. What helps excluding what doesn't right

0:12:09 Thomas: So read everything with a very skeptical eye and, everyone and can judge for themselves, but I'm, going I'm to kind of be reading stuff thinking, okay, what, what things, would um, I need like more evidence? Uh, well, I mean, I always need more evidence for everything, but what, what things do I need? Like, well I'm gonna need a bunch more evidence für that or what kinds of evidence would I need versus what things are like, well that's plainly seems to be documented. So we can like bank on there, there will be documentation for this, um, because, uh, where we should start. The lawyers that Blake Lively has are very good, solid lawyers. This is a very well -written complaint. People might look at that as bias, I guess, but it'S, it'S just true. Like you have to read it. If you read complaints that aren't this good that you could just tell, I don't know, it'S It's kind of a subjective thing, I guess, but like this a very by the book kind of thing. This isn't like firecracker shoots from the hip lawyer coming as such, you lawyers have professional obligations and while they're going to make the facts look as much their way as they can, there's certain things they just will not do. Like they're not going to say there's a document when there's not a document that that

0:13:09 Thomas: Would be insane. Like you can, you can you mean, that's happened. But like we're dealing with a major law firm here, like a This is not just somebody who found their lawyer from Breaking Bad, you know, Saul Goodman.

0:13:21 Lydia: Yeah. Wilkie, Farr, and Gallagher. This is a prominent law firm.

0:13:24 Thomas: Said, this is a very by the book thing. So the things you can look for are like what kinds of evidence they will likely be able to produce. Now, for people who have skipped ahead here and kind of already know what's going on, it's not normal to have a bunch of text messages in a complaint. That's actually not the norm. Logically speaking like, oh, why wouldn't you? Why wouldn't she just try to prove your case? But all of that stuff is more for PR. Usually you write the complaint and you can essentially just say on information and belief for everything. You don't actually have to prove your case. You're not winning the case with the legal complaint. The legal complaint is doing is alleging it's and alleging, hey, on information because often when you're wronged, you might not have like all the proof handy.

0:14:05 Lydia: The reason for discovery.

0:14:07 Thomas: And there's different layers to that. There's different Things you need to be able to survive a motion to dismiss in a lot of this can be on information and belief. Person did this to me like up to the other party to respond. Bond. And if it's a matter of fact, if it was a properly question, alleged complaint and comes down to they said they said, then what you have to do is you go to discovery and discovery. You have to provide each other with a bunch. It's just, It is the worst actually.

0:14:32 Thomas: I've gone through it. Having gone through it, it is the worse. Is very invasive and you have to provide And that is where you start to argue about, okay, now we are getting down to the nitty gritty of what we can actually demonstrate with evidence, and we're gathering that evidence. Don't have to do all that in the complaint. There's certain thresholds you kind of have to meet, like you have to have a reasonable basis for stuff, but it is actually abnormal to have a bunch of text messages in a complaint. That's not normal. You to certain extent, and Baldoni's to the Nth degree, is written to be consumed by the public. Necessarily wrong with that. Uh, myself did something like that when the public was following a legal dispute, we wrote stuff knowing people were going to read it, but just, just that because there's not really a burden to like prove out all this stuff via exhibits and text messages right now. Like that's just not the burden in a legal complaint at this moment. And I don't know if everybody knows that.

0:14:32 Lydia: It's very intense. Yeah. Tell you from Reddit, people don't.

0:15:24 Thomas: Because usually you don't have, actually, that's a good thing to talk about right now. Usually at this stage, you don'T have a bunch of texts. That's abnormal. Actually, is very weird that Blake Lively has these text messages. First thought, again, when I was first approaching this was, oh, okay, maybe through the California Civil Rights department, maybe they had started an investigation and got to, because usually as you referenced, you get this stuff in discovery and that's down the line. We're still, you know, we're a little ways from discovery. It starts up pretty soon, but it's not right away. It's not when you have the complaint. Usually you're saying, I think this happened and I think they have this evidence if I were to be able to look at their phone or whatever.

0:16:02 Lydia: I could acquire it.

0:16:03 Thomas: Exactly. And then that's the of process acquiring it is called Discovery. It's very weird that she has all these. And so that's why that sentence was important. Her filing includes excerpts from thousands of pages of text messages and emails that she obtained through a subpoena. And that's in the New York Times article. My first thought was, was there some, we were trying to track down, what would this subpoENA be? A subpoena in the in the civil sense it an ongoing legal proceeding of some kind um it'S it'S very weird that she had one already like she had acquired stuff already before this complaint that is very weird and I have spent so much time trying to figure out okay then what would that legal proceeding be because it's not this it can't be this um I said we were thinking maybe does it have something to do with the civil rights department and how that was done but from the experts we've talked to and from all our research it seems like that's a pretty firm no it It seems like the CRD was, here's my complaint, give sue letter, we're out of here. That right away was just a weird thing. What right away, when you look at who the allegations are gets and you look at the parties of the lawsuit, is there is someone who's very prominently not there.

0:17:13 Thomas: And that is Stephanie Jones. That's cutting ahead a little, but it's important to talk about this part of it. I think it's worth talking about this subpoena right now. Stephanie Jones. The PR firm that first was representing Baldoni.

0:17:29 Thomas: Jones works. What happened was at a certain point, we'll get into this more later, but this is just broad summary. At a certainpoint, some folks who worked at that PR firm left and they took Baldoni and Wayfarer with them, essentially. Sort if you were suing people who you thought had done something improper in a PR effort to take you down, what you do when you sue is you sue everyone. There's a saying that says, sue everyone and let God sort it out. You tend to attach everyone you can.

0:17:28 Lydia: I jones works yeah why oftentimes you'll see like complaints where it says like does one through ten does through one through 100 because you never know if you're going to find additional folks you want to add to the complaint

0:18:04 Thomas: Yeah. And that, I think, is also a California sort of specific thing. Yeah, I mean, I'm not saying it's only in California, but I do know that when I had lawyers working from out of state, they didn't do that. And then the California lawyers were like, oh, this is how we have to. There's different rules and how you have to, like, you up your complaints and all that crap. Yes, the point is you want to sue everyone and then it's kind of on them to get out of it. As process continues, they can say, hey, actually, we have nothing to do with this. There's different ways they can try to become not to anything. But in general, if you're the plaintiff and very hard to succeed in the legal system. A celebrity and having money is pretty you know, that obviously helps a lot. That easy. Crazy and you tend to want to include everyone you can to get more bites of that apple kind of thing. And you also never know for sure. Cause usually you don't have any, you know, you don'T have a subpoena. You don't know for Sure. Who's responsible for what? So it's often on information and belief kind of thing. So even though Baldoni and Wayfarer left Jones works at a certain point, still no reason why they wouldn't be included in this complaint. Like there's no no reason why Blake Lively wouldn't be suing them.

0:18:09 Lydia: Interesting. Right, they being represented by Jones Works during a period of time in which the production

0:19:10 Thomas: Some of these things might've happened.

0:19:12 Lydia: Was occurring. Right? Exactly. Yeah, They would have been a party to this case. Yeah.

0:19:17 Thomas: I think it's pretty clear that Stephanie the person left and took baldonian wayfarer with them from jones works that person had to leave their work cell phone now this is speculation but I think it's very reasonable speculation that I I can't honestly think of any other explanation for we'll see but it seems as though, Stephanie Jones saw, maybe, uh, upset about what happened. She seems to be upset. She filed a lawsuit later. She was upset that they left and took her client in her mind and snooped around and saw what was going on. And that's honestly, we could talk about that later, but it's a work phone. It's It's her business. That's, that's kind of her property essentially. I texts would belong to her. And I, is is highly likely that what happened was stephanie jones might have even approached blake lightly or something and said hey I have this information that is going to be very helpful for you and there's probably some sort of arrangement they worked out something uh exchange for not suing her or something here we will uh hand over this stuff in then I would imagine that stephani jones would probably want some sort legal protection just in case she's doing anything improper by handing over these texts, I would imagine she'd want some legal cover. And so therefore it would be like, Hey, let's do a friendly subpoena kind of thing, but you still need a legal action going on. Like you still needs something to be happening. So I scoured like the courthouses. There's obviously a zillion courthhouses, but I didn't, it didn't make any sense that this would be like hidden. Cause if you think of when this would would have happened, it would have been like while before this, at least some number of weeks before this that they would have seen these texts and started this process and that. Would be weird. And I wouldn't even understand why they would want to like hide this proceeding. So I searched the courthouses that made sense, LA County, the New York, you that they're in now. Searched a couple others just in case. All of of them are searchable. So it's, it wasn't in the places two I looked, itS very hard to find stuff like this. Cause you just don't know what the case number is. You don't know what docket you're searching, but

0:21:08 Lydia: Lot going on.

0:21:09 Thomas: I scoured all those dockets. I looked at, I paid for search, you know, like I, looked around, did not find anything that could be tied to this. One guess I have, and we ran this by the who didn't seem impressed by this guess. Yes. So I will definitely caveat it with that. Do know that Stephanie Jones has an arbitration clause in her contract with Wayfairy. It is true that if you were an arbitration, that judge could issue a subpoena or you could, and that judge would authorize it, I guess. That would be totally like, black you box. Like we wouldn't be able to find that at all because arbitration is all that's you can't private yeah we wouldn't know but I still don't have an explanation for what arbitration that would be exactly and I'm not sure when I we were talking to the lawyer about this I think she was saying that I thought they cooked up one randomly I don't really think that I just think it's it's possible that somewhere in these disputes if parties are in arbitration maybe that's where it came from. I just, I can't make sense of it any other way. Here's things that are not going to be true. The New York Times is saying that she obtained it through a subpoena Blake Lively is saying she obtained It's just not going to be it. Like There is some subpoenas. Now, I don't know. You maintain that subpoena might be weird or something, but there is a subpoENA of some kind. The New York Times will have verified that. This is not the first article the New York times has ever written. They're 150 years old. The law about reporting and defamation literally has New York time's in it. Like know what they're doing. Doesn't mean they never

0:21:41 Lydia: Private.

0:22:44 Thomas: Make a mistake or something. But this isn't something they would lie about.

0:22:47 Lydia: Well, and like everything that they publish is going through a number of different folks especially if they're making claims about somebody their legal is going to be reviewing it to make sure that they're comfortable with publishing it yeah

0:22:57 Thomas: This isn't their first effing rodeo. Like a lot of people are coming to this thing just thinking that the New York Times is some upstart paper from, you know, from a small town. It's like, no, they've been through this with people who they're much more worried about than Justin Baldoni. They have published stuff on powerful people and get to it, but they have not lost a defamation suit in 50 years. Been like or two settlements we we could talk about, but they know what they're doing. If your theory is going to be that or somebody Blake Lively made up and New York times just says, Oh, okay. Yeah. Sounds good. Subpoena. That's not going to beat it. They will at least have a good reason to say that. Is a subpoena it's, it's weird to be hung up on this so early, but I can't tell you, we spent hours on this. I'm just trying to figure out. And it actually is kind of important. I think we will eventually figure out through some sort of filing, but it's very weird. It's very interesting. Mind you, she's if going to be entitled to all this anyway through discovery. So it's not really even dependent on this. This just demonstrates that she has good reason to go forward with this, but these same texts will be produced through discovery.

0:23:57 Lydia: Again not necessary for her initial complaint

0:24:08 Thomas: Exactly. So, Okay. Okay, so long last, with that mystery subpoena discussion aside, let's talk about the complaint. We're going to just focus on the alleged conduct that to the filming. We're not going to talk about social the media, PR, all that stuff yet, because the important characters here, and I guess we've only talked about Justin Baldoni, I think. I think you alluded to them. Heath is probably, I Think, the second most important defendant here, I guess. Jamie Heath serves as the CEO of Wayfair. And Baldoni have been friends for a long time. Also appears on the Man Enough podcast. You know, they co -host it a lot. I look through that and I think that they're not always there. But anyway, point is, they're listed as like co - hosts. Very close. Also Steve Sarawitz. And he, importantly, is a super rich dude. Billionaire. He is the leading financier of Wayfarer, he is very willing to dump a lot of money into all this. In the first part of Blake Lively's complaint, she sets up that, like, one of the problems here was that and Jamie Heath were not only, you co -founder, co chairman of the studio. Not only lead actor but we're also director baldoni's director executive producer so a lot of authority and rules all tied up in one you say you have a complaint against an actor and you know not like you're making making a serious complaint, but like, oh, you know, this was a little weird. You might think of going to the director. Well, what if the director is that, you know, and you might think of going to the studio head. Well what if that's also the same guy and that creates a bit of an issue, you outlines how that made things tough. Read this heading, Baldoni ignored well -established industry protocols in filming intimate scenes and exploited the lack of controls on set to behave inappropriately. Blake Lively alleges, and again, this is Blake Lively's complaint. These are her allegations. Alleges that Baldoni improvised physical intimacy that had not been rehearsed, choreographed, or discussed with intimacy coordinator. So this is when they first started filming. Importantly, this is all kind of in this first little bit of filming they did, which was in May 2023. This was before the strikes. So So they got started. Writer's strike happened, but they could keep filming during that. They filmed a couple of scenes. It was like a couple of days of shooting, you know, over a couple weeks that they had done at this point. For that first allegation, we kind of were talking about with the improvising and all that. Says, quote, instance, Mr. Baldoni discreetly bit and sucked on Miss Lively's lower lip during a scene in which he improvised numerous kisses on each take. Mr. Baldoni insisted on shooting the full scene over and over again, well beyond what would have been required on an ordinary set and without advanced notice or consent. So that's interesting. Impression in reading that first accusition there?

0:26:55 Lydia: Mostly I'm just uncomfortable. Um, I think we're going to be a good pairing here because I am someone who does take things at face value like so I think you're gonna help keep me a little more grounded uh throughout this but

0:27:06 Thomas: Here's a reality of this kind of thing speaking in general about sexual harassment, there's a number of different codes we're looking at, you knows, both federal and state, but just in general, harassment needs to be something where, you're employee or some sort of covered worker. So you first have to be, you for, for this specific code to apply, you have to be subject to unwanted sexual conduct of some kind. Has to be based on her gender, which that's a, that's kind of a weird legal way of saying something. Cause it, to my mind, it seems like, well, as long as it's not based on anyone's gender, you can sexually harass everyone you want, but I think there's, some you legal precise meaning to that, that DON'T I think it's going to turn on that. Conduct has to Be severe or pervasive. So it can't just be like a single minor thing. Like could be a single event if it's more severe or it can be a pattern of less severe, but frequent things. That's anything with the law, that's not a hard and fast, easy way to, say something is this or not, but in general, it's like single extreme acts or patterns of less severe acts. And with sexual harassment, a I person is committing sexual harassment It's not As though they're doing so by the book with the government code in mind You point is good lawyers do is they look at the code and they look At what you need to prove to prevail on a cause of action and they write their complaint with that in mind.

0:28:18 Thomas: They structure it in that way. And that involves fitting things into a pattern as best you can, especially at this again, where you need to survive a motion to dismiss. You need to demonstrate that you have reason to believe like these things happen. And so what I'm trying to say is there's conduct, with sexual harassment. That's that's severe, but frequent. Going be things that are on that bubble, you know, where it's like, I think this is part of the pattern, but wasn't like like if it was one thing, maybe wouldn't be like, you know, that's not quite so. But like when you have a pattern of conduct that's less severe, I what you're going to do in a complaint is to try highlight all of it, you you need to to make the argument that there's a pattern here. And so when you're filing a legal complaint, you're going to highlight everything you can. And that means is that it's let's say there is sexual harassment just for the sake of argument. There there was conduct that was sexual harassment. Possible that mixed in there, there's going to be stuff that like kind of wasn't really intended that way or didn't this happened to be a misunderstanding. But like you're going to fit everything you can into that pattern because you're making your case. And then, you then you have the chance to make the case like there's nothing wrong with that because you are at this point forming a legal complaint with the best argument you can. And you're saying, I think all these things were a pattern of sexual harassment. At trial, if you get there, it'll be up to your side to prove that, and you it might be like, oh, well, this thing turns out it was a misunderstanding. Thing, maybe it wasn't. And And if you have enough, you even if one instance you, you don't convince the jury on, I guess what I'm trying to say is not every instance in this complaint might be rock solid strong. Wrong. It'll be up to proving it at trial and it'll be up to a jury. And there's nothing, there's nothing wrong. It's not like, it's not like anyone's lying in doing that. It's that you're, you're writing your complaint to make the best case you can. Does that make sense? So like, what I mean by that is things that I am very skeptical of in this first paragraph. Not skeptical of her saying he, well, I'm skeptical of everything, but like I have less doubt about her saying Mr. Baldoni bit and and sucked on her lip. That's a very specific thing. Someone told you, hey, fabricate sexual harassment, you would not think of that. You know, like that, those are the kinds of things I think of. Know, always assume someone's just a devious psychopath genius who can just come up with amazingly, but like, largely, that's not how people work. You I asked just random person, hey, come up With sexual harassment. Said hey sugar tits you gotta get me that you know like they'll come up with something that's like everybody's seen on a fucking some video that you know what I mean like are were trying to make something up and they're like, I know what he did to sexually harass me, it was sucking on my lower lip. Like, that's a very specific thing.

0:30:52 Thomas: Know, anything's possible, but I am – I'm that likely to belief that happened. I think that's – it's likely that happened Now, parts I'm a little more skeptical on are shooting the scene over and over again beyond what's required. Me as something that will be kind of tough to prove. I mean, maybe you could, but that's something that I'm going to need to hear more on. Like, just how I'm reading it. I'm, you know, obviously this is just me, but I'm reading like, okay, this is a very specific claim when it comes to like shooting it over and over again, beyond what was required. Could I be definitely convinced of it. I'm not saying it's not true. i'M just saying, you an interesting one. I wonder how you'd establish that kind of thing. Like, I could see it feeling feeling that way, but not being that way more, you know, whereas I cannot see, well, I thought he sucked on my lower lip, but he didn't like that. That happened. You know what I mean? Like that'd that'S how I'm looking at these things. Keeping in mind, obviously we're gonna get to see Baldoni's response to all this. So he may have a different story of this and we'll take that evidence as it goes, of course. Next one, it says Baldoni and Lively were filming a slow dance scene for a montage in which no sound was recorded. Reported, chose to let the camera roll and have them perform the scene, but did not act in character as Ryle. Instead, he spoke to Miss Lively out of character as himself. At one point, he leaned forward and slowly dragged his lips from her ear down to her neck as he said, it smells so good. None of this was remotely in character or based on any dialogue in the script and nothing needed to be said because again, there was no sound. Baldoni was caressing Miss Latively with his mouth in a way that had nothing to do with their roles. Had a little sloppiness with the pronouns here. Cause we had Mr. Baldoni and Mr. lively and Miss lively and miss Baldoni. So, yeah, I as I said this is a well -written complaint, and it is a little bit of proofreading problems there. So that's interesting. We'll keep that in mind. But single when Miss Lively later objected to this behavior, Mr. Baldoni's response was, quote, I'm not even attracted to you.

0:32:37 Lydia: That sounds real that definitely sounds like a response coming from a man in a situation like that so

0:32:43 Thomas: Had the same reaction. I'm me as something that, again, highly doubtful that that's made up. It's also a really shitty response. FYI, if anyone's ever objecting to behavior in a way like that, saying I'm not even attracted to you is a way to both like kind of insult the person. And it'S to suggest that, well, I would have been sexually harassing you if I were attracted to. It's just a it's just all around bad.

0:32:50 Lydia: Doesn't yeah and gaslighting them yeah

0:33:07 Thomas: Yeah, it's a really bad way to do it. It's a lot of this behavior is the again, we see this like people try to put this into neat boxes, but this behavior can be something where it's like, OK, first thing. Yeah, OK. Second thing. And then it starts to be like, oh, you're losing possible deniability. And then stuff hard because stuff that you could look at is like, oh, maybe that's innocent. It starts to be like, I don't know. It's a lot of things in a row that are that. And then you kind of, you look at all of that in retrospect in a bad light. don'T know where the truth is when it comes to these things, but it's possible that some amount of this was misunderstanding or none of it was or there's somewhere on the spectrum that that would be. And there's no reason that blake lively would or needs to know 100 what was going on in baldoni's mind at all times in order to allege this stuff you people strikes me as all plausible allegations and we'll see how she can prove them yeah

0:33:55 Lydia: Also want to make a note that um harassment is not determined by the person who is being accused of sexual harassment. It's determined by the person who is on the receiving end of it. And if what they are experiencing is uncomfortable for them in a work environment, again, this is a work environment, then that can constitute sexual harassment. And obviously there's like a legal standard that's different than, you know, just some sort of discipline on the the workplace, workplace, place right varying degrees there but in terms of like is and is not sexual harassment that is to be interpreted by the person experiencing it yeah

0:34:32 Thomas: But that doesn't mean someone Someone can take totally, completely innocent behavior and turn it into sexual harassment just because they alleged it. Like, there's still, when it comes to something like a legal standard, obviously, you plaintiff bears the burden. I'm speaking from the perspective of she's going to have to prove this stuff is all I'm saying. I'm not trying to invalidate her experience in any way, but she will have to convince a jury of this. The next section talks about more of improvised, gratuitous sexual content or nudity actually says, including for an underage character. Lively says she signed on to the movie based on a draft, but then Baldoni added graphic content, including a scene in which, quote, Miss Lively was to orgasm on camera. Continuing on, when Ms. Lively objected to these additions, Mr. Baldoni insisted he had added them because he was making the film through the female gaze.

0:35:24 Lydia: Yeah. I don't even know what to say about that.

0:35:26 Thomas: That one, I'm of that one just because that feels like a little too cartoonish, idiot, misogynist. I don't know. I feel like that that one, I wouldn't be surprised if there was some amount of misunderstanding going on in terms of what was said or mistranslation from Because that feels a little, yeah,

0:35:42 Lydia: I'm confident that he probably said that through the female gaze because that's how he presented, you his intent with the film that we talked about previously. Right. Like that it was really important to him. How He covered, you various interviews with press and everything like that. But I don't know that it necessarily was in connection to the conversation about the orgasming like on camera.

0:36:03 Lydia: I don't know THAT IT WAS LIKE AT THAT POINT THAT HE SAID THAT. I think THAT THAT'S A LITTLE CREATIVE POTENTIALLY.

0:36:03 Thomas: I I would be open to certainly a different kind of context around that. Because stuff that seems a little too like cartoon mustache twirling bad guy to me, not impossible. But I am a little skeptical. But I the claim that he added graphic content without knowledge, I think that's plausible. And she should be able to demonstrate that based on kind of timings of scripts and stuff. And who knows what else? So we can look for evidence on that later. That says he agreed to remove the scenes, but he made one last ditch attempt to keep one in which the couple orgasm together on their wedding night, which he said was important. And this is and this is where we get into that, like uncomfortable, you having this double duty. He said it was important to him because he and his partner climaxed simultaneously intercourse. Mr. Baldoni then intrusively asked Ms. Lively whether she and

0:36:21 Lydia: UNLIKELY. MM -HMM. MM - HMM. YEAH. God

0:36:59 Thomas: Her husband climaxed simultaneously during intercourse, which Ms. Lively found invasive and refused to discuss. Yeah.

0:37:06 Lydia: Invasive is an understatement there like that highly inappropriate if if if

0:37:11 Thomas: And I find this plausible. Sounds like the exact kind of conversation that that might think is OK and then she's not setting up a boundary here that this is not OK. You know, it sounds like he's potentially ignoring that boundary. And this feels plausible in its painting a picture of Justin Baldoni as somebody who is the conversation in personal ways, using the film content in ways that I just don't think would be appropriate in any other workplace. You know just isn't I think it seems like he's maybe not thinking of this as a professional workplace in the way that he should. This one, this struck me as, potentially, as if this all happened, how Blake Lively alleged it, this feels to me like very invasive, very embarrassing and a very significant instance of, of this kind of sexual harassment and just, and just gross stuff. I'll quote some of it here. Here on the day of shooting the scene in which Miss Lively's character gives birth, Mr. Baldoni and Mr. Heath suddenly Heath. Remember, we got to keep keep that in mind to suddenly pressured Miss Latively to simulate full nudity despite no mention of nudity for the scene. In the script, her contact or in previous creative discussions, insisted to Lively that women give birth naked and that his wife had, quote, ripped her clothes off during labor. He claimed it was not normal for women to remain in their hospital gowns while giving birth.

0:37:43 Lydia: You know pause because for someone who's really insistent that like the female gaze is important etc etc he really has a lot of opinions about like how women act in all of these situations like he's has some strong opinions there um

0:38:45 Thomas: Mansplaining to a woman who just had her fourth kid. Like,

0:38:48 Lydia: Had her fourth kid I've had three Kids I've worn the hospital gown the entire time for all three kids I don't know

0:38:54 Thomas: And this is another one where if being charitable toward Baldoni, I could imagine a conversation. Happens when someone says, oh, well, my impression of how this would go is thus. Someone else might say, yeah, well, my impression is, is this. And it's like, there's no one way that humans do stuff. And I could see a dialogue about like, well maybe this character does this, this way. Um, there's no rule in acting that there's only one way that that character would do a thing and it has to be the way the actress would do it. Like that's, that's not true. So I could imagine some amount of like good faith conversation about that, but this, this strikes me as something a little bit past that and also what, what follows. So, Ms. Lively disagreed, but felt forced into a compromise that she would be naked from below the chest down. One seems like, okay, I will say about this next part. Event is able to be kind of corroborated and the jury takes this event as having happened, roughly the way she's describing it, it strikes me as incredibly bad for Baldoni. I'm going to just, I think I'll just read this paragraph.

0:39:54 Thomas: The birth scene was filmed, the set was chaotic, crowded, and utterly lacking in standard industry protections for filming nude scenes, such as choreographing the scene with an intimacy coordinator, having a signed nudity rider, or simply turning off the monitors so the scene was not broadcast to all crew on set. And on their personal phones and iPad, Mr. Heath and Mr. Baldoni also failed to close the set, allowing non -essential crew to pass through while Miss Lively was mostly nude with her legs spread wide in stirrups and only a small piece of fabric covering her genitals are. The non -essential persons present that day was Wayfarer co -chairman Mr. Sarowitz, who flew in for one of his few set visits. Lively was not provided with anything to cover herself in between takes until after she had made multiple requests. Lively became even more alarmed when Mr. Baldoni introduced his, quote, best friend to play the role of the OBGYN, when ordinarily a small role of this nature would be filled by a local actor. Ms. Lively felt that the selection of Mr. Baldoni's friend for this intimate role in which the actor's face and hands were in close proximity to her nearly new genitalia for the birth scene was invasive and humiliating. That, yeah, I mean, that's really bad.

0:41:06 Thomas: Yeah.

0:41:05 Lydia: A lot there yeah yeah

0:41:07 Thomas: Lot really bad, and also, I think important for later, again, if this happened at all, like she's saying, seems to me. I'm open. We'll see what he says in response, but But if this happened at all like this, I can imagine Ryan Reynolds being furious about this. And if I were Ryan Reynolds, I would be furious about this. And it would certainly color my perceptions of Baldoni, of how he's running his set, all that stuff.

0:41:30 Lydia: The production company mm -hmm yeah

0:41:32 Thomas: So I can very much imagine some ill will here as a result of this, for sure. That would be really frustrating. We have another, I think, significant part, and especially so because this is about Jamie Heath. And I think we should keep that in mind because this isn't all about just Justin Baldoni. Perhaps you've heard this presented a lot as just Blake Lively versus Justin Baldoni, and it is, but it's also about Jamie Heath and the production company and the set. That I think is important to keep in mind. This isn't some personal thing just against Baldoni or or something. If you try to look at it that way, I think it's inaccurate. Then Mr. Heath approached Ms. Lively and her assistant on set and started playing a video of a fully nude woman with her legs spread apart. Ms. lively thought showing her pornography and stopped him. Mr. Keith explained that the video was his wife giving birth. Lively was alarmed and asked Mr. Mr. Heath, if his wife knew he was sharing the video to which he replied. Quote, She isn't weird about this stuff. If Miss Lively was weird for not welcoming it,

0:42:33 Thomas: Litely and her assistant excused themselves, stunned that Mr. Heath had shown them a nude video. What strikes me about this. For one, she's making mention of her assistant who will be able to corroborate this. Yeah.

0:42:42 Lydia: A witness mm -huh yeah

0:42:45 Thomas: Yeah. This is super gross. And this is something, especially the quote, she isn't weird about this stuff, which is to me, it seems just another instance of this constant kind of pressuring. Again, according to Blake Lively, we're trying to create this atmosphere of like trying to direct things to way of making her feel uncomfortable for having to be the one saying no to things.

0:43:07 Lydia: I mean like women experience this all the time right like because of that pressure to be like you laid -back girl about that that kind of stuff, right? Like ever since we're like teenagers, children, like that to excuse away things as jokes from boys and stuff or like to laugh along with something or whatever because you want to be seen as the cool girl. That's exactly what's happening here. But it's coming from like a 50 -year -old man who's

0:43:32 Thomas: Not the director. It struck me right away that don't know about anyone else but yeah if anyone were showing me a video of birth my first question would be like well uh is this okay with the person in the video who's not here like that seems like a really reasonable question well

0:43:48 Lydia: Here's the other thing, because they have an intimacy coordinator. So is not on set. That day. Don't know why. Because I feel like simulating birth is a very intimate moment even if it's not about simulating sex or um you know sexual content between actors I feel like giving birth is a very intimate moment and and I think the other piece of it too is that if the production company felt like they wanted Blake, you of four who had just given birth to review some like other options for approaching a birth scene. I should probably come from the intimacy coordinator and not a random producer. Best friends with the other producer, director, actor that you're opposite of. Like, in the world would that not be something that you lean on an intimacy coordinator for saying, you know, we really want to develop the scene. Wondering if you have some examples we could use to kind of explore what we could do here instead using a personal video of his wife

0:44:00 Thomas: Perhaps one of the most yeah absolutely strikes me as gross and um don't know how else to put it if true very bad for baldoni's side I guess you know like this witnesses that would be involved and I imagine that um lively is going to be able to produce witnesses or to to this. If she is, this whole thing seems terrible for Baldoni. It seems absolutely terrible. Mentioned that there was that underage part of the heading. That has to do with this last paragraph of this section. Baldoni added a detailed scene to the film in which the underage version of Miss Lively's character, Lily, loses her virginity. In book and the the script for the film, there was no sex scene. Instead, the details about this moment were left to the audience's imagination, but Mr. Baldoni added in considerable details, including both dialogue between young Lily and her boyfriend, Atlas about the loss of her virginity, as well as a simulated sex scene in which Mr. baldoni filmed and included in his initial cut of the film a close -up of young Lily's face accompanied by an audible gasp at the moment of penetration. Lively was informed that when this scene was shot, after Mr. Baldoni called cut, he walked over to the actors and said, quote, I know I'm not supposed to say this, but that was hot. And did you two practice this before?

0:46:08 Lydia: My God. Oh. My God.

0:46:11 Thomas: Okay. If true, that's sexually harassing behavior. That's not okay. It's a bad workplace thing. Again, if true, I don't understand how there There would be any controversy over that being not acceptable.

0:46:23 Lydia: Anybody's boss saying that to them in a work environment like that is so gross. If true. Gross.

0:46:28 Thomas: Especially when you think about these younger actors, not as established, especially young Lily. I

0:46:32 Lydia: This allegedly her first movie and

0:46:36 Thomas: Think about that power dynamic there. Stuff. Not good. Is a claim about a car ride in which Baldoni claimed that he had been sexually abused by a former girlfriend, which he has shared publicly. According to Lively, he shared that it caused him to re -examine his past. And then he just, this is interesting. I don't know what this conversation would have looked like. I kind of thing where if you thought Blake Lively were dishonest, then imagine you her having conversation in a way that seemed fine at the time and then saying it wasn't and describing his side and making him seem insane. Saying. I think you would have to take, a you pretty negative view about Blake Lively to that.

0:47:13 Lydia: Disregard that she was not alone in the car with baldoni her assistant was there and her driver was there oh

0:47:20 Thomas: He says, did I always ask for consent? No. Did I always listen when they said no? No, Mr. Baldoni claimed this was an example of how we all have things from which we can learn and grow. Ms. Lively was unsettled by Baldoni's suggestion that he had engaged in sexual conduct without consent. When Ms. lively exited the car, her driver immediately remarked that he did not want Miss Lively to be alone with Mr. Baldoni going forward. You can imagine there could be statements of testimony from the driver. Also Baldoni and Heath were talking about hooking up with a woman and like kind Baldoni had decided the woman wasn't quote the one. And so Mr. Heath had gotten together with her. This strikes me as very plausible, considering that there was a video I watched that was Baldoni, Jamie Heath, Scooter Braun and like some other dudes talking in the wake of Me Too about, and actually a lot of the conversation was really interesting. But in that video, Jamie Keith admits to like cheating on his wife for decades or

0:48:13 Clip: Now, this is coming also from a man who believes this. But also, I have a history, a long history of hurting women, not not abusing them intentionally, not nothing I would go to jail for. I'm on the right side of the law. But I teach my son to have a high regard for women while I was unfaithful to his mom.

0:48:36 Clip: Right. I was infaithfulness to his mother for for a long period of time. And yet I'm telling him to respect women. I believe in respecting women. And yet with that strong belief was not.

0:48:52 Thomas: It's interesting. In line with what I know about Jamie Heath based on his own admission in that video. Right, well, I'M SIZING THIS THING UP AND I'M SEEING THAT WE'VE GOT, GOSH, AT LEAST ANOTHER HOUR TO GO. So around the 45 minutes to an hour mark of any episode is when I will likely call it if there's going to be multiple parts. It's something like close, it's not like 70 minutes, you know, we'll just go the extra time. But we have at least like an hour left. So I'm going to call it here for this first part of Blake Lively's complaint. Don't worry, the next part will already be out by the time you're hearing this. I want to thank you for listening so much. Support the show. So patreon .com slash gavelpod, and there's going to be bonus extras over there, not to mention the entire Trump trial, you can always check out. We've got some fun bonuses planned around this series as well. You can find them there eventually. And also you can finde no ads there and a warm, fuzzy feeling for supporting the show. All right, well, thanks so much for listening and we'll see you right away for part two of Blake Lively's Complaint.