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Eramo v. Rolling Stone LLC

United States District Court, W.D. Virginia, Charlottesville Division

January 25, 2016

NICOLE P. ERAMO, Plaintiff,
ROLLING STONE LLC, et al., Defendants

          For Nicole P. Eramo, Plaintiff: Andrew Clay Phillips, Elizabeth Marie Locke, Thomas Arthur Clare, LEAD ATTORNEYS, Clare Locke, LLP, Alexandria, VA.

         For Rolling Stone LLC, Sabrina Rubin Erderly, Wenner Media LLC, Defendants: Elizabeth Anne McNamara, LEAD ATTORNEY, PRO HAC VICE, Davis Wright Tremaine, LLP, New York, NY; Michael John Finney, William David Paxton, LEAD ATTORNEYS, Gentry Locke Rakes & Moore, Roanoke, VA.


         Hon. Glen E. Conrad, Chief United States District Judge.

         In a related case before this court (the " defamation action" ), plaintiff Nicole P. Eramo brings several defamation claims against defendants Rolling Stone LLC (" Rolling Stone" ), Sabrina Rubin Erdely, and Wenner Media LLC (" Wenner Media" ). In this action, which was transferred from the United States District Court for the Eastern District of Virginia, Eramo seeks to compel a non-party, referred to in the complaint as " Jackie," to produce certain documents. For the following reasons, the motion will be granted in part and denied in part.


         Nicole P. Eramo is an Associate Dean of Students at the University of Virginia (" UVA" ). Rolling Stone and Wenner Media are the publishers of Rolling Stone magazine. Ederly is a reporter and Contributing Editor for Rolling Stone.

         On November 19, 2014, defendants published an article entitled, " A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA" (the " Article" ). Compl. ¶ 45. The Article contained a graphic depiction of the alleged gang rape of UVA student, Jackie, at a fraternity house on September 28, 2012. None of the alleged assailants were identified in the Article. According to the Article, Jackie's mother informed an academic dean that Jackie had a " bad experience" at a party. Id. ¶ 56. The academic dean then put Jackie in touch with Eramo.

         The Article then goes on to describe Jackie's interactions with Eramo, who was also the head of UVA's Sexual Misconduct Board at the time. The Article claims that " [i]f [] Eramo was surprised at Jackie's story of gang rape, it didn't show." Id. ¶ 57. According to the Article, Eramo then provided Jackie with several options. Eramo explained that Jackie could file a criminal complaint with the police. However, if Jackie wished to keep the matter within UVA, Eramo gave her two options. As to the first option, Jackie could file a formal complaint with UVA's Sexual Misconduct Board, which would be decided in a " formal resolution" with a jury of students and faculty, as well as a dean serving as the judge. Id. ¶ 58. As to the second option, Eramo could conduct an " informal resolution," wherein Jackie would face her attackers in Eramo's presence and tell them how she felt; Eramo could then issue a directive to the men. Id. The Article stated that Eramo did not pressure Jackie as to which option she should choose; however, Jackie decided not to file any complaint regarding her attack. The Article also claimed that, when Jackie asked Eramo about sexual assault statistics at UVA, Eramo responded that those statistics were not publicized " because nobody wants to send their daughter to the rape school." Id. ¶ 61. Finally, Jackie again met with Eramo to discuss her assault and other alleged attacks at the same fraternity. The Article stated that Jackie was " disappointed by Eramo's nonreaction" and expected " shock, disgust, and horror." Id. ¶ 63.

         The Article caused a " media firestorm" after its release and was viewed online more than 2.7 million times. Id. ¶ 1. The complaint in the defamation action alleges that Eramo's reputation as an advocate and supporter of victims of sexual assault was destroyed by the Article. She was attacked by individuals on television and the Internet, and she received hundreds of threatening, vicious emails from members of the public. As a result, the complaint alleges that Eramo suffered " significant embarrassment, humiliation, mental suffering and emotional distress." Id. ¶ 207.

         After further investigation by independent entities, it was reported that the Article, and key components of Jackie's story, could not be substantiated. Within two weeks of the Article's publication, the fraternity where Jackie's alleged attack took place produced evidence demonstrating that no " date function" or other social gathering was held on the night in question, and that no member of the fraternity matched the description given by Jackie for her primary attacker. Id. ¶ 90. On December 5, 2014, Rolling Stone issued a statement that acknowledged the discrepancies in Jackie's account, blamed Jackie for misleading Erdely, and claimed that their trust in Jackie had been " misplaced." Id. ¶ 91. The next day, a group of students, including Jackie, wrote to The Cavalier Daily, decried defendants' false portrayal of Eramo, and lauded her work on behalf of sexual assault victims. On March 23, 2015, the Charlottesville Police Department issued a statement that it had " no substantive basis of fact to conclude that the incident occurred that is consistent with the facts described in [the Article]." Id. ¶ 125. Moreover, a report commissioned by Rolling Stone described the Article as a " journalistic failure" and concluded that defendants " set aside or rationalized as unnecessary essential practices of reporting." Id. ¶ 14. Overall, Eramo contends that " [d]efendants' purpose in publishing the Article was to weave a narrative that depicted [UVA] as an institution that is indifferent to rape on campus, and more concerned with protecting its reputation than with assisting victims of sexual assault. Id. ¶ 2.

         On May 12, 2015, Eramo filed a six-count defamation complaint against defendants in the Circuit Court for the City of Charlottesville. The complaint alleges that the statements in the Article concerning Eramo were false and defamatory. Specifically, Eramo denies calling UVA " the rape school" or discouraging Jackie from reporting and/or sharing her attack. Instead, Eramo claims that she encouraged Jackie to report her incident with police, offered to assist Jackie in the reporting process, and arranged for Jackie to meet with police. Eramo also alleges that defendants purposely ignored " red flags" and other evidence that indicated that Jackie's story lacked credibility. Eramo's defamation claims arise not only from the allegations in the Article, but also from other statements made by the defendants in subsequent articles and media appearances. Defendants deny that they acted with negligence or actual malice, or that they had any previous indications that Jackie was an unreliable source.

         On May 29, 2015, defendants removed the action to this court. On July 27, 2015, Eramo served Jackie with a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure. Jackie refused to provide any documents in response to the subpoena. The parties attempted to resolve the issues with the subpoena through letters and telephone conferences, but they were unable to reach an agreement.

         On November 13, 2015, Eramo filed a motion to compel Jackie to comply with the subpoena in the United States District Court for the Eastern District of Virginia. That motion was transferred to this court on December 9, 2015. On December 29, 2015, Eramo filed a supplemental motion to compel, stating that production of documents from defendants and others obviated the need for certain documents from Jackie. Accordingly, Eramo seeks only the following documents: (1) Jackie's relevant communications with defendant Sabrina Rubin Erdely (Demand Nos. 1 and 18); (2) Jackie's relevant communications with Rolling Stone (Demands No. 2 and 18); (3) Jackie's relevant communications with Nicole Eramo (Demand No. 6); (4) Jackie's relevant communications with UVA (Demands No. 12); (5) Any communications Jackie authored or received while using the pseudonym " Haven Monahan," or those in which Jackie references " Haven Monahan" (Demand No. 15); and (6) Jackie's relevant communications with others regarding the Rolling Stone article (Demand No. 16).[1] On January 12, 2016, the court held a hearing on the motion to compel. The motion has been fully briefed and is ripe for disposition.


         The Federal Rules of Civil Procedure provide that a party " may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" [2] Fed.R.Civ.P. 26(b)(1). " Information within this scope of discovery need not be admissible in evidence to be discoverable." Id. Moreover, the discovery rules are to be accorded broad and liberal construction. Herbert v. Lando,441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); see also CareFirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,334 F.3d 390, 402 (4th Cir. 2003) (holding that " [d]iscovery under the Federal Rules of Civil Procedure is broad in scope and freely ...

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