IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Charlottesville Division ) ) ) ) ) ) ) ) ) ) )

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Charlottesville Division NICOLE P. ERAMO, v. Plaintiff, ROLLING STONE, LLC, SABRINA RUBIN ERDELY, and WENNER MEDIA, LLC, Defendants. Case No. 3:15-cv GEC REPLY IN SUPPORT OF MOTION TO ADD WITNESSES TO TRIAL WITNESS LIST Defendants Rolling Stone, LLC, Wenner Media, LLC (together, Rolling Stone 1, and Sabrina Rubina Erdely ( Erdely, by counsel, respectfully submit this Reply Brief in Support of their Motion to Add Witnesses to their Trial Witness List. As explained below, the Court should grant the Motion. INTRODUCTION Plaintiff s case is a moving target. In seeking and opposing summary judgment, Plaintiff unequivocally attributed certain opinions by Laura Dunn and John Foubert as false statements about her, specifically claiming that these opinions can be proven true or false with evidence.... (See Dkt. No. 117 at This is a very different iteration of the general claim of defamation by implication, which Rolling Stone and Erdely previously understood Plaintiff to assert by referencing these statements in the Complaint. (See Dkt. No.1-1 at Wenner Media, LLC is referenced separately as Wenner Media where appropriate. 1 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 1 of 7 Pageid#: 12684

2 Given this apparent change in the substance of Plaintiff s claims, the Defendants seek to include Dunn and Foubert as witnesses at trial. Plaintiff refuses, and has opposed the Defendants Motion. (Dkt. No The purpose of Rule 37(c(1 is to prevent surprise and prejudice to the opposing party. S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir Thus, the Rule excuses justified or harmless nondisclosure. Scott v. Clarke, No. 3:12-cv-00036, 2014 U.S. Dist. LEXIS , *5-6 (W.D. Va. Oct. 22, Applying this standard here, Plaintiff misses several important points: 1. She overlooks that Dunn and Foubert were both disclosed numerous times in this case. There has been no failure to disclose. Therefore, there can be no surprise. 2. She ignores the positions she took in her summary judgment argument. Plaintiff cannot suffer prejudice when her shifting positions are the reason for any nondisclosure. 3. She disregards the fact that she already possesses all the information relating to Dunn and Foubert that the Defendants have. The substance of their testimony is not a mystery, and plainly bears on the issues to be tried. Therefore, the Court should grant the Defendants Motion. ARGUMENT A. Dunn and Foubert were clearly disclosed over the past year. As a threshold matter, Dunn or Foubert were previously disclosed. Plaintiff cites no law contrary to the basic principle that Rule 26(e s duty to supplement is not triggered and exclusion of a fact witness is unwarranted when the witness identity was already made known in discovery. See Odom v. Jasper Cty., No. 5:14-CV-22 (CAR, 2016 U.S Dist. LEXIS 41504, 2 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 2 of 7 Pageid#: 12685

3 *23-24 (M.D. Ga. Mar. 29, 2016 (fact witnesses not initially disclosed were permitted to testify at trial because the witnesses had been previously identified in interrogatory answers; Super Wings Intl, Ltd, v. Keener, No. C , 2011 U.S. Dist. LEXIS , *9-10 (N.D. Iowa Dec. 15, 2011 (same; McKesson Information Solutions, Inc. v. Bridge Medical, Inc., 434 F. Supp. 2d 810, (E.D. Cal (rejecting the defendant s motion to exclude fact witnesses; the witnesses testimony at trial would not prejudice the defendant because their identities were disclosed through documents and deposition testimony; see also Coleman v. Keebler Co., 997 F. Supp. 1102, 1107 (N.D. Ind (plaintiff satisfied Rule 26(e(1 duty to supplement when [she] brought the identities of [the fact witnesses] to Keebler s attention during [its employee s] deposition. That principle readily applies here. Wenner Media disclosed Dunn and Foubert in its interrogatory answers over a year ago (see Dkt. No at 11-12, Moreover, Rolling Stone and Erdely have already given Plaintiff all the information relating to Dunn and Foubert that they possess. Erdely previously produced her notes from her interviews with both Dunn and Foubert, and she and Rolling Stone each produced their respective communications with them regarding the article. The substance of what Dunn and Foubert discussed with Erdely and Rolling Stone has not been kept from Plaintiff. Further, Plaintiff obviously knew that Dunn and Foubert could provide testimony relevant to the case because she questioned Erdely about them in her deposition. (See Dkt. No at 12, 16. Given this history of repeated disclosure, Plaintiff cannot and does not argue that she did not know of Dunn and Foubert until now. She cannot be surprised by their presence now. 3 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 3 of 7 Pageid#: 12686

4 B. Any nondisclosure is substantially justified. Further, Plaintiff s shifting theories and claims justify any disclosure concern. Prior to summary judgment, the Defendants believed that Dunn s and Foubert s opinions bore on only Plaintiff s defamation by implication theory. That playing field changed after discovery closed. Plaintiff changed her characterization of the opinions in summary judgment briefing. Dunn s quote, which referenced schools... discouraging and silencing assault victims, became Ms. Eramo pretend[ed]... [she is] on the victim s side, when [she s] actually discouraging and silencing them.... (See Dkt. No. 117 at 19 (emphasis added. Likewise, the critics statement became Ms. Eramo keeps rapes quiet because she is less concerned with protecting students than [] with protecting [the University of Virginia s] reputation from scandal.... (Dkt. No. 117 at 20 (emphasis added. Most important, Plaintiff newly contended that each statement can be proven true or false with evidence that Ms. Eramo lied to the sexual assault victims or that Ms. Eramo attempts to suppress or discourage the reporting of sexual assaults.... (Dkt. No. 117 at (emphasis added. In short, Plaintiff s theory of her case shifted from her Complaint, and she now claimed that these general opinion statements were actionable statements of fact. Plaintiff does not explain this important change in her legal theory, but instead claims that she really did not mean what she stated previously. The record clearly belies such an attempt. With Plaintiff s new theory, it becomes evident that testimony from Dunn and Foubert (1 explaining what they meant by the quotes attributed to them in the Article and (2 putting such quotes in context to their knowledge and experience, is important for the Defendants to rebut Plaintiff s new theory. This became particularly clear during oral argument on the summary judgment motions, when Plaintiff s counsel contended, for the first time, that Erdely 4 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 4 of 7 Pageid#: 12687

5 was in fact the actual critics referenced in the Article. The Defendants have to assume that Plaintiff will make the same argument at trial and, as such, the testimony of critics like Dunn and Foubert become important to the defense of this case. In short, Plaintiff indicated that the character of her claims had changed, thus requiring Dunn and Foubert to be added as witnesses. Any late disclosure is plainly justified. C. Plaintiff relies on inapplicable case law. Plaintiff relies on cases involving strikingly different facts. For example, in Southern States the Court of Appeals affirmed the district court s decision to exclude expert testimony of an opinion that was not disclosed until the second day of trial. 318 F.3d at 594. Likewise, in Wilkins v. Montgomery the Court affirmed the lower court s exclusion ruling where the plaintiff disclosed an expert report on the very date the court had scheduled as the deadline for filing motions to exclude experts. 751 F.3d 214, 223 (4th Cir Clarke also provides poor support for Plaintiff s position. In that case, the defendants had violated Rule 26(a twice: (1 they failed to timely designate an expert; and (2 they failed to timely notify the plaintiffs that they intended to use the expert opinion testimony of a separate defendant U.S. Dist. LEXIS at *5. The defendants never endorsed or adopted the other defendant s experts. Id. at *4-5. Further, the defendants took three and a half months to supplement their disclosures, by which time the other defendant had been dismissed from the case. Id. at *2, 4-7. The defendants also failed to offer any explanation for their failure to disclose, and essentially blamed the plaintiffs for not deposing the other defendant s experts before it had exited the case. Id. at *6-7, 9. Late disclosures of expert witnesses are far removed 2 There is a fundamental distinction between a party s failure to amend a Rule 26(a(1 disclosure to add/list a fact witness that was repeatedly disclosed in answers to Interrogatories and in document production, and the failure to make a required disclosure of expert witness under Rule 26(a(2(B or (C. 5 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 5 of 7 Pageid#: 12688

6 from disclosure of fact witnesses, particularly when they have been known from the outset of the case and all the relevant evidence surrounding such witnesses have been disclosed. Simply put, none of the facts in these cases exist here. Accordingly, they cannot govern. D. The testimony of Dunn and Foubert is important and causes no disruption. The testimony of Dunn and Foubert is clearly important. If Plaintiff decides to reassert her summary judgment theory at trial, the Defendants are entitled to rebut that argument with the witnesses testimony. Further, the witnesses opinions concerning institutional indifference to sexual assault are highly relevant in any event. They plainly bear on Erdely s mindset, and whether she acted with actual malice in believing and reporting on how UVA handled sexual assault and how it responded to Jackie s story. Moreover, Dunn and Foubert are fact witnesses, not experts. The subject matter of their testimony is narrow, and would take up little time. Additional depositions are unnecessary because the substance of their testimony will be nothing new to Plaintiff. Indeed, it is reflected in the Article. CONCLUSION For the reasons stated above, the Court should grant the Defendants Motion, and enter such additional relief as the Court deems just and proper. ROLLING STONE, LLC SABRINA RUBIN ERDELY WENNER MEDIA, LLC By: /s/ J. Scott Sexton Counsel 6 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 6 of 7 Pageid#: 12689

7 W. David Paxton (VSB No J. Scott Sexton (VSB No Michael J. Finney (VSB No GENTRY LOCKE 10 Franklin Road S.E., Suite 900 P.O. Box Roanoke, VA Telephone: ( Fax: ( Elizabeth A. McNamara (pro hac vice Samuel M. Bayard (pro hac vice DAVIS WRIGHT TREMAINE LLP 1251 Avenue of the Americas, 21 st Floor New York, New York Telephone: ( Fax: ( Alison B. Schary (pro hac vice DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue NW, Suite 800 Washington, D.C Telephone: ( Fax: ( Attorneys for Defendants Rolling Stone LLC, Sabrina Rubin Erdely, and Wenner Media LLC CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of October, 2016, a true and correct copy of the foregoing was filed with the Clerk of Court using the CM/ECF system, which provided electronic service to all counsel of record. /s/ J. Scott Sexton 7 Case 3:15-cv GEC Document 212 Filed 10/03/16 Page 7 of 7 Pageid#: 12690