Initial Disclosures Cannot Await Expert Opinions

Lively v. Wayfarer Studios LLC, 2025 WL 1999355 (S.D.N.Y. Jul. 17, 2025), involves a lot of money.  It has also generated a cottage industry of discovery decisions.

Westlaw lists 13 decisions (not all on discovery) since February 2025.  For blogs on some of them, please see “It Ends With Us” (Apr. 8, 2025); Crime-Fraud Exception to Privilege Not Shown (Jun. 8, 2025).

Contextually, the litigation has been described in popular media. L. Italiano, Blake Lively must turn over detailed business income records to Justin Baldoni (Jul. 14, 2025);  I. Vasquez, Blake Lively’s Deposition Pushed Back by 2 Weeks After Judge’s Latest Ruling in Justin Baldoni Case (Jul. 14, 2025); E. Saunders, Blake Lively and Taylor Swift messages can be included in Justin Baldoni legal case, judge rules (Jun. 19, 2025); 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).

In the most recent decision, Wayfarer Studios LLC, Justin Baldoni, Jamey Heath, Steve Sarowitz, It Ends With Us Movie LLC, Melissa Nathan, The Agency Group PR LLC, and Jennifer Abel (collectively, the “Wayfarer Parties”) moved to compel Blake Lively (“Ms. Lively”) to provide specific information about her claimed damages.  Id. at *1.

In her initial Rule 26(a)(1) disclosures, Ms. Lively stated in part: “At a later date, Ms. Lively will provide an estimate of damages in an amount to be determined by an expert in accordance with the scheduling order in this case.”

In her answers to interrogatories, “Lively objected on a number of grounds including that the interrogatory prematurely sought information that was properly the subject of expert testimony and was an improper contention interrogatory….”  Id.

In her written response to the request for production of documents, Ms. Lively objected and wrote: “Subject to and without waiving the foregoing objections, and only after the entry of a mutually agreed upon ESI protocol, Ms. Lively will conduct a reasonable search for and produce non-privileged documents responsive to this Request, to the extent any exist.”  Id.

As an aside from the Lively opinion:

• “To the extent” responses such as this have been condemned. “Such objections are considered mere hypothetical or contingent possibilities, where the objecting party makes no meaningful effort to show the application of any such theoretical objection to any request for discovery. Thus, this Court has deemed such ostensible objections waived or [has] declined to consider them as objections.” Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D. Md. 2008)(citation omitted); and,
• Fed.R.Civ.P. 34(b)(2)(C) mandates that: “An objection must state whether any responsive materials are being withheld on the basis of that objection.”

The Lively court wrote that Rule 26(a)(1) requires a computation of each category of damages and the disclosing party must make available the documents on which the computation is based.  Id. at *2.  The court wrote:

Although Lively’s damages may depend largely on expert discovery, this does not relieve her of the obligation to comply with Rule 26. [C]ourts in this district routinely find that a party may not refuse to respond to interrogatories seeking damages calculations on the ground that expert analysis will refine the damages calculation…. There is no exception to Rule 26(a)(1) in cases in which damages will be proved by experts: the disclosing party still has the responsibility to provide each category of required disclosures based on the information it has at the time, and to supplement those disclosures as more information is gained.

Id. (cleaned up; citations and quotations omitted).  The Lively court added:

The plaintiff may not be able to clarify the precise method of calculating damages prior to expert discovery, and the amount initially claimed may turn out to be inaccurate…. But Lively must have some basis for stating that she has suffered economic damages.… Lively is obligated to comply with Rule 26 as best she is able, including by providing a calculation of damages and supporting documents. Fed. R. Civ. P. 26(a)(1)(A)(iii).

Id. (same). The court also decided an issue on the scope of financial information that was discoverable. Id. at *3-4.