Olivia de Havilland's Age (101) Could Present Difficulty in 'Feud' Lawsuit

Olivia de Havilland and Catherina Zeta Jones Feud Still - Split - Photofest - H 2017
Left, Photofest; Right, courtesy of FX

On Wednesday, a Los Angeles Superior Court judge will hear Olivia de Havilland's motion for an expedited trial in her lawsuit against FX over her depiction in Feud: Bette and Joan. She's claiming that the Ryan Murphy series violated her publicity and privacy rights by featuring her likeness (played by Catherine Zeta-Jones) in distasteful ways. She requests a trial as soon as November in advance of her 102nd birthday. An attorney for FX has suggested that January would give both sides more time to conduct discovery and prepare for trial, but there's not any real opposition to the aging actress' demand for an expedited trial. Even if a trial is scheduled in the coming months, however, the lack of drama over the trial date belies a looming procedural conundrum.

De Havilland is relying on a California statute that allows parties who are 70 or older to petition for a swift trial. The purpose of the law is self-evident. Because of her advanced age, de Havilland faces prejudice if she were not able to participate in a trial because of declining health.

But FX has filed a motion under California's anti-SLAPP statute to strike her complaint. The SLAPP law is meant to deter frivolous court actions targeting First Amendment activity. FX contends that constitutional protections for using someone's name or likeness in expressive speech like a motion picture or television program make her lawsuit a loser. Importantly, though, California's SLAPP law provides an automatic right to an interlocutory appeal (one before trial). The purpose of that is to do everything to preserve free speech rights.

So if a trial is to occur, it would presumably come after Los Angeles Superior Court Judge Holly Kendig has rejected FX's anti-SLAPP motion. The defendant would then appeal. Typically, it takes a year or longer to resolve appeals in California. The state has a pretty crowded docket of cases — meaning that a January trial would be a wildly optimistic timetable.

In court papers, neither side addresses the conflict between one California law that speeds up litigation and another California law that slows it down. We've reached out to the lawyers for comment. In the meantime, we imagine there would have to be advance planning for an expeditious appeal.

But that only is the beginning of the complication because another thing that's accomplished by California's anti-SLAPP statute is to pause discovery. If the judge were to deny FX's efforts to stop de Havilland's lawsuit at a hearing on Sept. 29, both sides would presumably move into overdrive to prepare for the looming trial. At the moment, the parties are at a standstill until Kendig rules.

For de Havilland, according to court documents, discovery means some depositions. Her attorneys plan to depose Murphy, Zeta-Jones and others involved with Feud in October.

Meanwhile, FX's attorney tells the judge, "If the case proceeds, there is likely to be considerable amount of discovery taken, including traveling to France to depose Plaintiff. The parties then have to prepare for trial, including filing trial motions (e.g., motions in limine), securing the availability of and preparing witnesses, preparing exhibits, preparing jury instructions and otherwise undertaking the voluminous work involved with conduct a trial."

Remember that all this — including a trip to France — would presumably be happening at the same time as an emergency appeal.

Lawyers for de Havilland are playing down the pretrial workload. They state in court papers that FX has had since June 30, when the complaint was filed, to conduct research into de Havilland's life, and that discovery from her side will be "minimal, as she had nothing to do with the making of Feud."

That ignores that FX is likely going to want to explore the issue of damages. If her publicity rights were violated, what's the value of her imprimatur? Has she been approached for licensing opportunities? Does she have endorsement deals? And so forth.

Then again, this whole issue of when the trial occurs could be mooted if the judge later this month grants FX's motion and strikes her complaint. Should that happen, it might be de Havilland making an appeal. Given that possibility, her lawyers might wish to be careful if the issue of an appeal comes up at Wednesday's hearing.