[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Not on these facts. Lively v. Wayfarer Studios LLC, 2025 WL 2606904 (S.D.N.Y. Sep. 9, 2025).
This decision is the latest in a long string of discovery decisions in the sexual harassment lawsuit of Ms. Blake Lively against a series of parties denominated as the “Wayfarer Defendants.” The claim arises out of allegations about the production of “It Ends With Us” and allegations against Mr. Justin Baldoni.
Ms. Lively contends that Ms. Katherine Case, among others, was involved in an alleged smear campaign directed at Ms. Lively. Id. at *1. In pertinent part, Ms. Lively moved to compel Ms. Case “to produce documents allegedly improperly withheld on privilege grounds.” Ms. Case responded to the motion and provided a privilege log. Id. at *2. After reviewing Ms. Lively’s reply, the court ordered Ms. Case to produce the relevant documents for in camera review. Id.
THE LAW GOVERNING PRIVILEGE
The Lively court explained the governing principles. Id. at *2-3. Briefly summarized:
- “Because Lively’s complaint asserts both federal and state claims and the requested materials are relevant to both sets of claims, principles of federal law apply.”
- Under federal law, “[a] party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.”
- Courts have emphasized that “[w]hile the privilege confers important social benefits, it also exacts significant costs” because “[i]t runs counter to the ordinary judicial interest in the disclosure of all relevant evidence.”
- Accordingly, courts apply the attorney-client privilege “only where necessary to achieve its purpose and construe the privilege narrowly because it renders relevant information undiscoverable.”
- “A document is not privileged merely because it was sent or received between an attorney and client. The document must contain confidential communication relating to legal advice.”
- “[T]he burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship.”
- “A showing that the privilege is applicable and has not been waived ‘must be based on competent evidence, usually through affidavits, deposition testimony, or other admissible evidence.’”1
A document is not privileged merely because it was sent or received between an attorney and client. The document must contain confidential communication relating to legal advice.
Id.
FACTS: THE COMMUNICATIONS BETWEEN MS. CASE AND HER FATHER
The Lively court stated:
Thirteen of the communications are between Case and her father, James Case, who is a litigator at the firm Dykema Gossett PLLC…. Case claims attorney-client privilege with respect to each of the communications…. Case argues that the communications are privileged because they involve her “receiving legal advice from her father and retained counsel, having retained his firm as of August 28, 2024.”
Id. at *3.
The court explained:
A client’s familial relationship with counsel neither imbues the communications with protection nor deprives them of privileged status. The mere fact that an attorney is a family member does not mean that he ceases to act as an attorney in providing assistance to the client. However, it is also true, … that the mere fact that a family member is an attorney, and may therefore be better able to render assistance, does not necessarily mean that he is not acting as a family member when that assistance is given.”
Id. (emphasis added; cleaned up).
However, “the privilege does not apply if the lawyer is acting as a… relative….” Id. (cleaned up).
[T]he privilege does not apply if the lawyer is acting as a… relative….
Id. (cleaned up).
Applying those principles:
The documents at issue here are inconsistent with the notion that Case’s communications with James Case were those made with “a professional legal advisor in his capacity as such,” … or that Case was communicating with James Case in his capacity as her lawyer rather than as her father.
Id. at *4.
Ms. Case offered “no support” for her claim that she retained the law firm as of August 28, 2024. Id.
Additionally – perhaps more importantly – the court wrote that “the messages from that timeframe undermine the contention that she was consulting her father to obtain legal advice.” Id.
In the earliest communication on August 24, 2024, James Case asks his daughter whether she has received “[a]ny word from [Nathan],”2 and when Case replies that she has not heard from Nathan other than receiving a picture in a group chat, James Case expresses the view that “if [Nathan] is really not interested I don’t want to waste my guy’s time.” …. At the conclusion of the text chain, Case conveys that Nathan “doesn’t want to waste anyone’s time” and has decided not to file a lawsuit and expresses her thanks to James Case “and his partners” and her apologies “for the past two days.” …. It is evident from the messages that Case and James Case are not communicating as client and attorney, but as intermediaries connecting a lawyer at James Case’s law firm (“my guy”) with a person at Case’s firm (Nathan).
Id. (emphasis added).
The Lively court quoted the next message and concluded: “The message reflects a father offering helpful advice to his daughter; it does not establish that James Case was giving Case legal advice or had formed an attorney-client relationship with her.” Id.
After a gap of several months, the next message “mixes communications regarding the family dog, a movie that James Case is watching, and a stray comment that the Wayfarer Parties should ‘file soon to gain any traction over the rest of the week.’” Id. The court opined: “This statement sounds in public relations advice from father to daughter, not legal advice.” Id.
This statement sounds in public relations advice from father to daughter, not legal advice.
Id.
In further support of its holding, the Lively court added:
Case offers no affidavit from her or her father that an attorney-client relationship existed between the two, no evidence from James Case’s law firm to that effect, no engagement letter, and no evidence that any advice was provided to Case beyond the comments in the text messages. Nor does Case describe the scope of the purported engagement, indicate that anyone at James Case’s law firm did any work for Case or ran a conflicts check, assert that Case paid her father or his firm any fee for purportedly representing her, or offer any other evidence that would support the notion that an attorney-client relationship was formed or anticipated.
Id.
As such, the court held that Ms. Case failed to establish that her communications with her father-attorney were privileged. The Lively court addressed numerous other communications that were not between Ms. Case and her father. Id. at *4, passim.
For prior blogs on some of the discovery rulings in the Lively lawsuit, please see Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery – E-Discovery LLC (Sep. 6, 2025); “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit – E-Discovery LLC (Sep. 5, 2025); Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us”– E-Discovery LLC (Aug. 30, 2025); “It Ends With Us” – E-Discovery LLC (Apr. 8, 2025); Court Grants Motion to Strike Deposition Transcript Using Its “Inherent Power” – E-Discovery LLC (Aug. 11, 2025); Initial Disclosures Cannot Await Expert Opinions – E-Discovery LLC (Jul. 20, 2025); Party’s Motion to Quash Subpoena Denied for Lack of Standing – E-Discovery LLC (Jul. 2, 2025); and, Crime-Fraud Exception to Privilege Not Shown – E-Discovery LLC (Jun. 8, 2025).
Notes
- All quotations are “cleaned up” and citations omitted. ↩︎
- Ms. Melissa Nathan is founder and head of The Agency Group PR LLC, a media relations firm. Id. at *1. Ms. Case was employed by that entity. ↩︎
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