United States District Court, W.D. Virginia, Charlottesville Division
NICOLE P. ERAMO, Plaintiff,
ROLLING STONE LLC, et al., Defendants
Nicole P. Eramo, Plaintiff: Andrew Clay Phillips, Elizabeth
Marie Locke, Thomas Arthur Clare, LEAD ATTORNEYS, Clare
Locke, LLP, Alexandria, VA.
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.
Glen E. Conrad, Chief United States District Judge.
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
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.
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.
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. ¶
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.
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.
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.
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.
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). 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.
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[.]"  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 ...