So Wayfarer Parties are going to stipulate *for the purposes of trial* that lively did perform a protected activity.
It appears they want to narrow the trial to proving or disproving the existence of retaliation. Ok, makes sense.
What dawned on me and I wanted to share is that by doing this it could help their appeal.
This thought came to me when someone commented that NAG had said that to prove her workplace report was done in bad faith would require a high level of quite obvious evidence.
When they bring back the claims of defamation, civil extortion etc and hopefully fight that in court, they will need to show that lively acted with malice, which includes presenting all the evidence around the activities of reporting, filing and going to the NYT.
By stipulating, there isn’t a danger that this has already been litigated in the first case. They haven’t given BL side a dry run to defend themselves. The next case will be able to focus on the SH claims but the stipulation says ‘just for purpose of trial’.
It seems to me it’ll be easier to prove malice in a defamation case when they can take the entirety of the actions, rather than prove bad faith in a protected activity / retaliation claim.
*if lively got a jury to rule that her report was in good faith, that could ruin Wayfarer’s defamation claim in a future trial*
So this is the clearest evidence I’ve seen so far that they are protecting their future case.
Wayfarer came under fire for the way they litigated from the start but now it’s played out it seems to me their strategy was correct and worked. I don’t think it was an accident they managed to get her claims dismissed at SJ instead of earlier on, and still managed to get discovery to boost their future appeal… so I think it’s likely they are thinking several steps ahead and not just about the issue in front of them.