Crime-Fraud Exception to Privilege Not Shown

Lively v. Wayfarer Studios LLC, 2025 WL 1591282 (S.D.N.Y. June 5, 2025), is another in a series of discovery decisions in the dispute involving Ms. Blake Lively and Mr. Justin Baldoni, among many others.  See, e.g., “It Ends With Us” (Apr. 8, 2025); Lively v. Wayfarer Studios LLC, 2025 WL 1397047 (S.D.N.Y. May 14, 2025)(tax returns and financial information).

In this iteration, third-party defendant Jonesworks moved for a protective order prohibiting the Wayfarer Parties (which include Mr. Baldoni) from enforcing a subpoena on Edgeworth Security Services LLC.  The motion was granted.

Jonesworks argued that the documents sought were privileged. The court wrote that: “Jonesworks hired Edgeworth in mid-2024 in connection with its obtaining legal advice and preparing for potential litigation.”

The Wayfarer Parties did not dispute that the documents sought were attorney-client communications or work product.  Instead, they relied on the crime-fraud exception.  Id. at *1.  “In particular, the Wayfarer Parties assert that Edgeworth falsely imprisoned Defendant Jennifer Abel and then improperly obtained her private communications and data.”  Id.

The Lively court first set out the elements of the exception:

A party seeking to invoke the crime-fraud exception must demonstrate that there is probable cause (1) that the client communication or attorney work product in question was itself in furtherance of the crime or fraud’ and (2) to believe that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity…. A party wishing to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime….  As the Second Circuit has stressed, to properly override the privilege, a court must determine whether each communication at issue was made in furtherance of a crime or fraud.

Id. at *1 (cleaned up; citations and quotations omitted).

The court held that the Wayfarer Parties failed to carry their burden.

“For one, the Wayfarer Parties do not even attempt to argue that any particular communication that has been withheld was in furtherance of the conduct that they argue was criminal.”  Id.  It examined Jonesworks privilege log and wrote: “Many of the communications occurred months before or after Abel was purportedly falsely imprisoned, and the Wayfarer Parties have not explained how they could have furthered any such conduct.” Id.

It continued: “For another, the Wayfarer Parties have not presented evidence to support their allegations that Jonesworks committed a crime or a fraud.”  Id. at *2.