“Birth Video” Discovery Dispute in Lively v. Wayfarer Studios/Baldoni

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

This blog on Lively v. Wayfarer Studios, LLC, 2025 WL 3206490 (S.D.N.Y. Nov. 17, 2025), is my ninth on this and related litigation.

The opening sentence is:

Plaintiff Blake Lively (“Lively”) moves to sanction Defendant Jamey Heath (“Heath”) for failing to produce all video footage related to the “birth video” that the Court purportedly ordered produced on August 27, 2025.

Defendants reportedly asserted that “the footage was part of the director’s vision for the film’s final scene, not a personal invasion or an act of harassment.” Chukwudi Onyewuchi, Blake Lively’s Lawsuit Takes A Disturbing Turn Over ‘Porn’ Video Claim (11/4/2025).

In discovery, Ms. Lively sought “all video footage depicting the birth video, including but not limited to all versions that show the delivery” and an order precluding certain testimony for violation of a court order to produce it. Her motion was granted in part (production of the video) and denied in part (no sanction precluding evidence).

The court wrote:

In her complaint, Lively alleges that “Mr. Heath approached [her] and her assistant on set and started playing a video of a fully nude woman with her legs spread apart. Ms. Lively thought he was showing her pornography and stopped him. Mr. Heath explained that the video was his wife giving birth.”

The Wayfarer Defendants responded that the allegation in the Complaint was “an outrageous and knowingly false suggestion….” They asserted:

This allegation knowingly and maliciously misrepresents an instance when in connection with the birthing scene, Heath, at the director’s request, attempted to show Lively a video that demonstrated the director’s vision for the scene. This video, which ultimately was not shown to Lively (even though she stated she’d like to see it later, as she was eating) is by all accounts beautiful. Since Lively wanted to see it later, what she saw was the first image at the start of the video, which shows Heath’s wife, himself, and their baby after his wife gave birth at home (a “natural birth” or “home birth”).

The court framed the factual dispute over discovery as follows:

Lively therefore maintains that she was shown a video of Heath’s wife giving birth, while Heath maintains that he showed Lively only a video of himself, his wife, and their baby after the birth. [emphasis in original].

However, the court had previously granted Ms. Lively’s motion to compel. The court wrote that: “Thus, while it may be undisputed at this point that footage exists that resembles what Lively claims she saw, the question for present purposes is not whether producing the footage will decisively resolve exactly what she saw. Rather, the only question now before the Court is whether it has already ordered production of the footage based on Heath’s non-opposition. It has.” [emphasis added]. It wrote:

The current dispute is whether the Court’s order granting the motion to compel required production not only of the post-birth video Heath claims he showed Lively, but also of footage which might support Lively’s claim that she was shown a video of Heath’s wife giving birth. Because the Court’s order encompassed more than the video Heath claims he showed Lively, the additional footage should have been produced.

The court wrote that: “Put another way, Paragraph 101 of the Wayfarer Parties’ complaint denies Lively’s allegation that she was shown a video of Heath’s wife giving birth, and it alleges instead that she was shown a post-birth video. Lively’s requests sought to probe that denial.”

Ms. Lively’s discovery request was for “All Documents and Communications concerning Your allegation in paragraph 101 of the Wayfarer SDNY Complaint that Ms. Lively ‘falsely suggest[ed] that she was shown pornography or naked images of Heath’s wife on set’”

The court wrote: “That Heath possessed a video of the birth and not just of the moments after the birth would tend to support Lively’s claim and to undermine Heath’s allegation that Lively’s claim was false. Accordingly, it was insufficient for Heath to produce only what he claimed to have shown Lively.” [emphasis added].

Accordingly, it was insufficient for Heath to produce only what he claimed to have shown Lively
Lively v. Wayfarer Studios, LLC, 2025 WL 3206490 (S.D.N.Y. Nov. 17, 2025).

The court denied the request for sanctions precluding evidence because the failure to produce the video was not willful. Further, it emphasized the confidentiality order that was previously entered.

For more on discovery disputes in this and related matters, see generally: