“It Ends With Us”

E-Discovery LLC “It Ends With Us” by Michael Berman
Image: Holley Robinson, EDRM with AI.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025), the court granted in part and denied in part a motion to quash subpoenas issued to AT&T, Verizon, and T-Mobile (the “Wayfarer Parties”) by Ms. Blake Lively. 

Contextually, the litigation has been described in popular media.  B. Lang, Ruling in Blake Lively’s Subpoena for Justin Baldoni Phone Records (Feb. 28, 2025); L. Neumeister, Blake Lively’s lawyers seek tight hold over release of information in lawsuit against Justin Baldoni (Associated Press, undated); R. Aizin, Blake Lively and Justin Baldoni Lawsuits, Explained: Allegations, Key Players & More (Feb. 19, 2025).

Initially, with some exceptions, the subpoenas requested “[a]ll documents concerning ingoing and outgoing calls or text messages related to’ telephone numbers belonging to certain Wayfarer Parties and related individuals, ‘within the time period of December 1, 2022 to the present, including but not limited to call logs, text logs, data logs, and cell site location information.’”

After the Wayfarer Parties moved to quash, a “meet and confer” was ordered and Ms. Lively[1] “agreed to remove the reference to ‘[a]ll documents,’ remove the request for locational data, and clarify that the Subpoenas seek only ‘call logs and text logs reflecting non-content, numerical information regarding ingoing and outgoing text messages.’”

Fed.R.Civ.P. 45 requires that: “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty….”

The Wayfarer Parties sought “to have the Subpoenas limited to communications between the subpoenaed phone numbers and other specific phone numbers of parties and witnesses that Lively would provide.”  In short:

The Wayfarer Parties object to the fact that “even as modified, the Subpoenas continue to cover call and text logs revealing ‘the phone numbers for anyone with whom the Wayfarer Parties’ and other individuals communicated, regardless of whether such communication was related to the claims and defenses in this case.” [emphasis in original].

Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025).

Ms. Lively challenged the Wayfarer Parties’ standing to assert privacy interests of non-parties.  She also argued for a broad scope of discovery because “the purpose of the Subpoenas is to lead to admissible evidence regarding ‘communications not only among the defendants, but among the larger network of individuals who perpetuated the ‘untraceable’ campaign against Ms. Lively,’ which justifies their broad scope.” 

While it is not clear that Ms. Lively’s “lead to admissible evidence” argument was relying on the old standard that discovery is permissible if it is “reasonably calculated to lead to admissible evidence,” that standard was abandoned in December 2015.  A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts (Feb. 25, 2025); “Reasonably Calculated to Lead to Discovery of Admissible Evidence” (Nov. 6, 2024).

Other courts, at least in the Fourth Amendment context, have been sensitive to what phone records may disclose.  For example: “Even a brief snapshot can expose highly sensitive information—think a visit to ‘the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, or the gay bar,’ or a location other than home during a COVID-19 shelter-in-place order.” Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent (Mar. 7, 2025)(citation omitted; cleaned up).

The Lively court held that:

The Subpoenas of the Wayfarer Parties’ phone records, even as modified after the meet and confer, are overly intrusive and disproportionate to the needs of the case. The Subpoenas request call and text logs between certain of the Wayfarer Parties and any other phone number, in most cases from December 1, 2022, to the present. …. This request implicates legitimate privacy interests. Even though Lively has narrowed her request to exclude the content of calls or messages, the phone records themselves would still contain sensitive information regarding which doctors, psychologists, or even acquaintances the Wayfarer Parties spoke to, and when….  Lively has identified no means to segregate those numbers that may have some relevance to her case from those numbers that would have no relevance and would reveal sensitive personal information. [Emphasis added].

Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025).

The court recognized that there may be a privacy interest in phone records.

Even though Lively has narrowed her request to exclude the content of calls or messages, the phone records themselves would still contain sensitive information regarding which doctors, psychologists, or even acquaintances the Wayfarer Parties spoke to, and when…

Lively v. Wayfarer Studios LLC, 2025 WL 662896 (S.D.N.Y. Feb. 28, 2025).

The court also looked at the date range.  While the subpoenas sought records from December 1, 2022, “according to Lively’s complaint, this negative campaign did not begin until approximately August 2024.”  Thus, the court wrote that: “It is therefore unclear how communications to and from Wayfarer Parties in 2022 and 2023 would reveal individuals who participated in the [August 2024] campaign.” 

The Lively court clarified that Ms. Lively could make tailored requests to individuals that were already identified and who “allegedly participated in a negative media campaign” against her.  As to other people:

Even assuming additional individuals participated in the alleged campaign, the hope that discovery will turn up information on such participants does not justify the broad scope of the Subpoenas.

Id.

The Lively court made the following holdings:

  • “The Subpoenas must be quashed to the extent they seek the phone records of the Wayfarer Parties. This ruling is without prejudice to the Lively parties’ service of modified subpoenas more narrowly tailored to reveal relevant information.”
  • “[T]he Wayfarer Parties have not demonstrated standing to object to the Subpoena requests seeking the phone records of non-parties…. Therefore, the Wayfarer Parties’ motion is denied as to the portions of the Subpoenas which seek the phone records of non-parties.”

Subsequently, the court ordered a partial stay of discovery pending the New York Times’ motion to dismiss the Complaint:  “To the extent discovery is sought from the NY Times as a defendant, it can be requested if and when the Court denies the pending motion to dismiss. In the meantime, it is evident that the parties will be busy with document discovery from the other parties and with third party discovery.”  Lively v. Wayfarer Studios LLC, 2025 WL 698287, at *2 (S.D.N.Y. Mar. 4, 2025).

To the extent discovery is sought from the NY Times as a defendant, it can be requested if and when the Court denies the pending motion to dismiss. In the meantime, it is evident that the parties will be busy with document discovery from the other parties and with third party discovery.

Lively v. Wayfarer Studios LLC, 2025 WL 698287, at *2 (S.D.N.Y. Mar. 4, 2025).

In a later decision, Blake Lively, Ryan Reynolds, Leslie Sloane, and Vision PR, Inc., moved for a protective order.  Lively v. Wayfarer Studios LLC, 2025 WL 815364, at *1 (S.D.N.Y. Mar. 13, 2025).  The Wayfarer Parties consented to a proposed protective order “but object to any protective order permitting ‘Attorneys’ Eyes Only’ designation.”  The court entered “a protective order with a modified Attorneys’ Eyes Only provision and certain other modified language.”

For more information on subpoenas, please visit:

Notes

[1] I refer to “Ms. Lively,” but assume she was acting through counsel.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

Author

  • Miichael Berman's headshot

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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