Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 1 of 19 PageID# 310

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1 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 1 of 19 PageID# 310 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division NICOLE P. ERAMO v. Plaintiff ROLLING STONE LLC, SABRINA RUBIN ERDERLY, and WENNER MEDIA LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:15-mc GBL-IDD Underlying litigation: Eramo v. Rolling Stone, LLC, et al., Case No. 3:15-cv GEC, in the United States District Court for the Western District of Virginia NICOLE ERAMO S REPLY BRIEF IN SUPPORT OF HER MOTION TO COMPEL NONPARTY RESPONDENT JACKIE TO COMPLY WITH RULE 45 SUBPOENA

2 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 2 of 19 PageID# 311 INTRODUCTION Nonparty Respondent Jackie s November 27, 2015 Response in Opposition to Plaintiff s Motion to Compel Production [Dkt. 9] ( Opposition or Opp n ) does not address, in any meaningfully way, Plaintiff Nicole Eramo s detailed explanation as to why the documents sought in the subpoena are highly relevant to Plaintiff s defamation action against Rolling Stone magazine, and fails to offer any valid justification for Jackie s across-the-board refusal to comply with Dean Eramo s subpoena. Nowhere in Jackie s Opposition does she in any way attempt to rebut three key facts: (1) Jackie voluntarily chose to share a detailed (and false) account of an alleged gang-rape at the Phi Kappa Psi fraternity, and her subsequent interactions with Dean Eramo, with a prominent national magazine, with specific knowledge and intent that her story would published and widely read by the public; (2) Rolling Stone magazine published Jackie s story as the centerpiece of its article, further dramatizing Jackie s false account of the gang rape and accusing Dean Eramo of seeking to suppress it in order to protect UVA s reputation; and (3) subsequent investigations by the Charlottesville Police Department, the Columbia Journalism Review, innumerable other media outlets, and Rolling Stone itself determined that the story Jackie told Rolling Stone was a lie. Jackie s claim that she is now somehow completely immune from participating in any discovery with regard to her own false story that precipitated the defamatory article does not comport with common sense, let alone the Federal Rules of Civil Procedure. First, as explained at great length in Plaintiff s Memorandum, the documents sought from Jackie are highly relevant to the defamation action. They will demonstrate (1) that Jackie s account of an alleged gang rape at Phi Kappa Psi fraternity on September 28, 2012, the focal point and centerpiece of the Rolling Stone article, was false; (2) that the article s depiction of 1

3 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 3 of 19 PageID# 312 Dean Eramo s actions, response, and assistance to Jackie was false; (3) that Jackie did not tell Dean Eramo the fictional account of a violent gang rape that she told Rolling Stone; (4) that Dean Eramo was thus falsely accused of trying to conceal a gang rape that did not occur; and (5) that Jackie, Rolling Stone s primary source for the gang rape story and its defamatory claims about Dean Eramo, is a serial fabulist who Rolling Stone knew or should have known was not a reliable source on which to base its defamatory statements. Second, Jackie s heavy reliance on Federal Rule of Evidence 412 as her basis for refusing to produce documents is misplaced. Rule 412 simply has no applicability to the documents sought from Jackie, for four reasons. First, this is a defamation case against a magazine not a case involving sexual misconduct within the meaning of Rule 412. Rule 412 s Advisory Notes make clear it is not applicable under these circumstances. Second, it is beyond reasonable dispute that the fictional account of gang rape at Phi Kappa Psi told by Jackie and published by Rolling Stone simply did not occur. Third, no person s sexual predisposition is at issue. And, finally, the subpoena is concerned solely with the one incident that is relevant to the litigation Jackie s invented tale of a supposed fraternity gang rape on September 28, 2012 and not with any other extrinsic sexual activities that would trigger Rule 412. Finally, Jackie s arguments regarding the timing of the subpoena and other supposed privileges are without merit. Jackie simply fails to identify any privilege common-law or statutory that prohibits the discovery sought here. She therefore fails to meet her burden of establishing a privilege. And Jackie s argument that the Motion to Compel precedes document discovery between the parties to the litigation is both factually inaccurate and legally irrelevant. While it is certainly understandable that Jackie may prefer not to produce documents proving that she knowingly fabricated the bombshell story of a gang rape she told to Rolling 2

4 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 4 of 19 PageID# 313 Stone, the bottom line is that Jackie by her own conduct has made herself a key witness in this defamation action. Jackie s willful and voluntary decision to tell a false story to a reporter for a national magazine has caused a great deal of harm to Dean Eramo and a great many other people, resulting in at least three (so far) defamation lawsuits. Jackie has no basis for refusing to comply with the validly issued subpoena and should be ordered to do so. ARGUMENT I. The Subpoena Seeks Only Highly Relevant Documents. Plaintiff s Memorandum explained in detail the relevance of each category of documents sought by the subpoena. (See Nov. 13, 2015 Nicole Eramo s Mem. of Law in Supp. of Mot. to Compel Nonparty Respondent Jackie s Compliance with Subpoena Duces Tecum ( Mem. ) at [Dkt. 2].) Jackie s Opposition does not directly address any of these arguments, but instead again insists that Jackie s communications are not relevant because Jackie herself has not been sued for defamation. (Opp n at 8-9.) This argument misses the mark entirely. The entire defamatory article revolved around Jackie s tale of being violently gang raped as part of a fraternity hazing ritual. (See Mem., Ex. B 3-4 [Dkt. 2-2].) The author and Rolling Stone then claimed that, when Jackie reported her alleged gang rape to Dean Eramo, Dean Eramo abused Jackie and discouraged her from formally reporting the assault. (Id. 4, ) The author and Rolling Stone stated in the article and in subsequent media statements that Dean Eramo chose to do nothing about Jackie s allegations, and actively sought to suppress the story of Jackie s assault, in order to protect the reputation of the University. (Id ). Contrary to the arguments in Jackie s Opposition, many of the defamatory statements in the article are attributed directly to Jackie including Rolling Stone s false claim that Dean Eramo called UVA the rape school. (Id. 61.) Indeed, this defamatory statement was highlighted with a large, bolded pull-quote in the article: 3

5 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 5 of 19 PageID# 314 (Id.) Dean Eramo never said any such thing and cannot imagine why Jackie would tell a magazine reporter that she did. Jackie s argument that she herself is not accused of defamation ignores the obvious fact that Rolling Stone s claims about Jackie s supposed gang rape and subsequent interactions with Dean Eramo were based solely on Jackie, the primary source for the article, and the only source that could have claimed percipient knowledge of the gang rape and Dean Eramo s interactions with Jackie. But the story that Jackie told Rolling Stone has since roundly been proven to be pure fabrication. Rolling Stone has publicly acknowledged discrepancies in Jackie s account, and claimed their trust in her was misplaced. 1 The Charlottesville Police Department exhausted all investigative leads into Jackie s supposed sexual assault and determined that there is no substantive basis to support the account alleged in the Rolling Stone article. (Mar. 23, 2015 Press Release, Charlottesville Police Department s Investigation into an Alleged Sexual Assault as Depicted in Rolling Stone Magazine Article Dated November 19, See T. Rees Shapiro, Rolling Stone backtracks on U. Va. fraternity rape article as key elements doubted, Chicago Tribune (Dec. 1, 2015), available at 4

6 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 6 of 19 PageID# 315 (Attached as Ex. A).) The fact that the fraternity gang rape at the center of the article did not occur as Jackie recounted it is plainly relevant to whether the article was false and whether Rolling Stone s claim that Dean Eramo tried to cover up a (non-existent) gang rape was false and defamatory. Jackie cannot dispute this fact, so her Opposition simply ignores it. Jackie s Opposition also ignores the fact that Rolling Stone is expected to argue that it is not legally at fault because it printed exactly what Jackie told the magazine and believed her tale to be true at the time of publication. When a magazine or newspaper relies on a source in printing a story that is alleged to be defamatory, whether the magazine had reason to doubt the reliability of the source is a key issue, as is whether the magazine purposefully avoided other sources that would have cast doubt on the chief source s credibility. See, e.g., Wells v. Liddy, 37 Fed. App x 53, 61 (4th Cir. 2002) ( A reasonably jury could conclude further that sole reliance on such an unreliable source violates Virginia s [defamation] negligence standard. ). Thus, whether the supposed gang rape at Phi Kappa Psi occurred at all, whether Jackie fabricated and/or exaggerated some or all of her account of it to Rolling Stone, and whether Jackie was a credible source for Rolling Stone to rely on are all important issues in the underlying defamation action. Because she voluntarily chose to share with Rolling Stone a tale that is indisputably false, and because Rolling Stone is expected to claim that it found Jackie believable, 2 Jackie s credibility as a source for the magazine is very much at issue in the case. Plaintiff s document demands are narrowly targeted at demonstrating that Jackie told a false account of her supposed gang rape to Rolling Stone, that Rolling Stone recklessly disregarded warning signs that Jackie s story was false, that Jackie lacks credibility and was not a reliable 2 Rolling Stone and the reporter have in fact asserted lack of negligence and/or actual malice as defenses to Dean Eramo s Complaint, and have also claimed that the Rolling Stone story is substantially true. (July 16, 2015 Answer, Eramo v. Rolling Stone LLC, et. al., No. 3:15-cv GEC (W.D. Va.) at 77 [W.D. Va. Dkt. 27].) 5

7 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 7 of 19 PageID# 316 source on which to base such a story, and that Rolling Stone s claims regarding Dean Eramo s interactions with Jackie were false. Such evidence is highly relevant to the claims and defenses asserted in the defamation action and Jackie fails to demonstrate otherwise. Jackie s assertion that the subpoena is overly broad fails because on its face the subpoena seeks only her communications related to a single, discrete event at issue in the underlying litigation her supposed gang rape on September 28, Plaintiff could have sought wideranging discovery regarding other relevant issues such as Jackie s medical records, her mental health history, and any prior history of falsely claiming to be the victim of a sexual assault. Instead, the subpoena narrowly seeks only the most highly relevant documents going to key issues in the defamation action; namely: (1) what Jackie told Dean Eramo and when; (2) what Jackie told Rolling Stone and others about her supposed assault and interactions with Dean Eramo; and (3) what Jackie told certain other individuals about her supposed assault. (See Mem. at (Ex. A).) Jackie has completely failed to demonstrate how these requests are in any way overbroad or how conducting a simple search for electronic documents is unduly burdensome. 3 See Kinetic Concepts, Inc. v. ConvaTec, Inc., 268 F.R.D. 226, 249 (M.D.N.C. 2010) (mere assertion of undue burden is insufficient, and must be supported by affidavit or other evidentiary proof of the time or expense involved in responding to a discovery request); Robinson v, Quicken Loans, Inc., No. 3:12-cv-00981, 2012 WL , *3 (S.D.W.Va. Dec. 5, 2012) (if the information sought by a subpoena is relevant, then an undue burden objection must be supported by affidavit or other proof). The Opposition also glosses over the fact that prior to filing the 3 The cases Jackie cites for her claim that the subpoena is overbroad are inapposite. For example, in Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241 (E.D. Va. 2012), the subpoena sought an entire employment file containing much material completely extraneous to this litigation. See Opp n at 20. In In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008), the subpoena broadly sought all of an individual s s over a given time period, without any limitation by subject matter. See Opp n at 20. Jackie s Opposition fails to analogize these holdings to Plaintiff s subpoena, which plainly seeks a discrete set of communications related only to highly relevant subject matter. 6

8 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 8 of 19 PageID# 317 Motion to Compel, Plaintiff offered to drop certain of the document requests altogether, and to conference regarding the scope of others, but Jackie s counsel refused to negotiate. Instead, Jackie flatly refused to produce even a single document in response to the validly issued subpoena, necessitating the filing of this motion. (Mem. at 8; id. at Ex. D.) II. Federal Rule of Evidence 412 Does Not Apply To The Subpoena. Jackie s primary basis for her refusal to produce any documents in response to the subpoena is Federal Rule of Evidence 412. See Opp n at 1-2, 6-8, However, both the plain language of Rule 412 and the Advisory Committee Notes discussing its scope demonstrate that it is not applicable to this defamation action or the subpoena seeking documents from Jackie. The underlying defamation action is not a Sex-Offense Case or a case involving alleged sexual misconduct within the meaning of Rule 412. This is a defamation action, and the Advisory Notes make clear that there is nothing about Dean Eramo s defamation claims against Rolling Stone that triggers Rule 412 because Dean Eramo is not seeking evidence to be offered against a victim of sexual assault. Moreover, even if the defamation case could be construed as involving sexual misconduct, the subpoena is directed only at Jackie s account of the alleged gang rape that formed the basis of the article i.e., the sexual misconduct at issue and not at any other sexual behavior or evidence of a sexual predisposition. Fed. R. Evid. 412(a). Finally, even if Rule 412 did apply here (it does not), Plaintiff has amply demonstrated that the evidence sought is relevant to the facts and theories set forth by the parties to the defamation action, and therefore must be produced. For all of these reasons, Rule 412 does not exempt Jackie from the requirement that she comply with the subpoena. A. The Advisory Notes Are Clear That Rule 412 Does Not Apply Here Because This Defamation Action Is Not A Sex-Offense Case. 7

9 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 9 of 19 PageID# 318 To begin with, Jackie s Opposition fails to address the threshold issue, which is whether Rule 412 applies at all to Dean Eramo s efforts to obtain discovery in support of her defamation action. It does not. Rule 412 states: Rule 412: Sex-Offense Cases: The Victim s Sexual Behavior or Predisposition. (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim s sexual predisposition. Fed. R. Evid. 412(a) (italicized emphasis added). Dean Eramo s defamation action is not a Sex- Offense Case[], or a case involving alleged sexual misconduct because there is no alleged sexual misconduct being adjudicated within the meaning of Rule 412. Instead, Dean Eramo is asking the District Court to adjudicate the question of whether Rolling Stone printed false and defamatory statements about her response to a specific gang rape that did not occur. Rule 412 s Advisory Committee Notes clearly provide that Rule 412 is inapplicable in defamation actions, like this one, involving statements about sexual misconduct. Rule 412 s Advisory Committee Notes provide: Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a victim of sexual misconduct. When this is not the case, as for instance in a defamation action involving statements concerning sexual misconduct in which the evidence is offered to show that the alleged defamatory statements were true or did not damage the plaintiff s reputation, neither Rule 404 nor this rule will operate to bar the evidence. Fed. R. Evid. 412 (Advisory Comm. Notes 1994) (emphasis added); see also Webber v. Multimedia Entertainment, Inc., No. 97 CIV 0682 PKL THK, 1997 WL , *3 (S.D.N.Y. Nov. 24, 1997) (Rule 412 not applicable to a defamation action where putative victim could not reasonably be characterized as a victim of sexual misconduct). 8

10 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 10 of 19 PageID# 319 Here, Dean Eramo is not seeking to discovery evidence from Jackie to offer it against a victim of sexual assault. She has not filed an action against Jackie. And Jackie is not a party to the lawsuit. Instead, Plaintiff seeks evidence from Jackie to use against Rolling Stone a publication that cannot reasonably be characterized as a victim of sexual misconduct to prove the falsity of Rolling Stone s claims that Dean Eramo sought to cover up a gang rape on UVA s campus. This is precisely the situation the Advisory Notes recognize is not covered by Rule 412. B. This Defamation Action Involves A False Account Of Sexual Assault. Moreover, the only sexual misconduct remotely at issue in the litigation is the false account of the gang rape at Phi Kappa Psi on September 28, 2012, as reported by Rolling Stone, which indisputably did not occur. The story Jackie related to Rolling Stone was investigated at length by the Charlottesville Police Department, which issued a detailed press release concluding that there was no evidence that the sexual assault recounted by Jackie occurred, that the supposed assault could not have occurred when and where Jackie said it occurred, that Jackie did not suffer the supposed physical injuries she claimed to have suffered, that the alleged perpetrators do not exist, and that Jackie told others a completely different story than the tale she told Rolling Stone. (See attached Ex. A). Innumerable media reports have found further discrepancies and outright falsehoods in Jackie and Rolling Stone s account. Notably, although Jackie s Opposition repeatedly refers to her as a victim of sexual assault, at no time does Jackie claim in her Opposition that the supposed gang rape at Phi Kappa Psi on September 28, 2012 the only incident relevant to this Motion actually occurred. C. Even If This Were A Sex-Offense Case, Rule 412 Only Prohibits Introduction Of Evidence Of Jackie s Other Sexual Behavior Not Evidence Regarding The Underlying Sexual Misconduct Itself. 9

11 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 11 of 19 PageID# 320 Even if the Court were to find that this is somehow a case involving alleged sexual misconduct, Jackie incorrectly assumes that Rule 412(a) bars all discovery relating to whether her tale of a fraternity gang rape is true without any reference to, or analysis of, the actual language of Rule 412. By its plain terms Rule 412(a) bars admission (but not discovery) of two types of evidence: (1) evidence offered to prove that a victim engaged in other sexual behavior ; and (2) evidence offered to prove a victim s sexual predisposition. Fed. R. Evid. 412(a). Dean Eramo s subpoena is plainly not directed at any evidence regarding Jackie s sexual predisposition, and Jackie does not argue that it is. See, e.g., Truong v. Smith, 183 F.R.D. 273, 274 (D. Colo. 1998) (Rule 412(a)(2) refers to the attempted introduction of evidence regarding a victim s lifestyle or mode of dress offered to show that a victim is promiscuous); see also Fed. R. Evid. 412(a) (Advisory Comm. Notes 1994) ( This amendment is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the factfinder. ). Thus, the only question is whether the subpoena is directed at evidence regarding whether Jackie engaged in other sexual behavior. It is not. Jackie s interpretation of Rule 412(a)(1) is incorrect because by its plain terms Rule 412 does not bar discovery regarding the alleged sexual misconduct at issue in the case; rather, it bars the admission of evidence regarding other sexual behavior. The Advisory Committee Notes to Rule 412 make it abundantly clear that subdivision (a)(1) refers to attempts to introduce evidence of past sexual behavior for the purpose of suggesting that the victim was promiscuous or consented to the alleged sexual misconduct at issue. Indeed, the Notes expressly state that the word other is used to suggest some flexibility in admitting evidence intrinsic to the alleged sexual misconduct. Fed. R. Evid. 412 (Advisory Comm. Notes 1994); see also 10

12 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 12 of 19 PageID# 321 Sheffield v Hilltop Sand & Gravel Co., Inc., 895 F. Supp. 105, 108 (E.D. Va. 1995) ( Sexual behavior includes all activities, other than those intrinsic to the alleged misconduct. ) (emphasis added); Truong, 183 F.R.D. at 274 ( First, Rule 412 bars the admission of evidence offered to prove that any alleged victim engaged in other sexual behavior. Sexual behavior includes all activities, other than those intrinsic to the alleged misconduct, that involve sexual intercourse or sexual contact. ) (citing references omitted) (emphasis added). The document requests in the subpoena relate only to the supposed fraternity gang rape that Jackie recounted to Rolling Stone, as well as to evidence suggesting that it was fabricated, and do not in any way seek evidence of Jackie s other sexual behavior. They seek evidence regarding the alleged sexual misconduct the supposed gang rape at Phi Kappa Psi as well as evidence intrinsic to that alleged occurrence, in order to show that the story in the Rolling Stone article was a fabrication, and should have been discovered by Rolling Stone as such. Rule 412 does not even bar the admissibility of such evidence, let alone the discovery of it. In fact, the only case that Jackie cites for support of her interpretation of the scope of Rule 412 demonstrates the sharp difference between evidence regarding the alleged sexual misconduct and evidence regarding other sexual behavior. (See Opp n at ) In Doe v. Salisbury Univ., No. CIV. JKB , 2015 WL (D. Md. Aug. 21, 2015), two male students who were expelled based on a female student s allegation of sexual assault sued the school and the victim for, among other things, defamation. Id. at *1. In the footnote cited by Jackie, the court noted that the plaintiffs pleadings regularly describe Defendant Jane Doe # 1 s alleged sexual behavior, preferences, and reputation prior to the alleged sexual assault that forms the basis of this lawsuit. The parties are reminded and cautioned that Federal Rule of Evidence 412 bars the admission of certain evidence offered to prove that a victim engaged in 11

13 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 13 of 19 PageID# 322 other sexual behavior or offered to prove a victim s sexual predisposition. Id. at *13 n. 9 (citing references omitted) (emphasis added). That is the purpose and scope of Rule 412 it prohibits the admission of evidence offered to prove that the alleged victim engaged in other sexual behavior that is not intrinsic to the sexual misconduct at issue in the case. Simply put, Jackie cannot have it both ways. If she contends that this is a case involving alleged sexual misconduct within the meaning of Rule 412, then the alleged sexual misconduct at issue is by definition her supposed gang rape on September 28, Rule 412 on its face does not preclude admissibility of evidence regarding that alleged sexual misconduct let alone discovery of it but rather only prohibits the admissibility of evidence offered to prove that Jackie engaged in other sexual behavior, or evidence offered to prove [Jackie s] sexual predisposition. Fed. R. Evid. 412(a). The subpoena does not seek either prohibited category of evidence, and Jackie does not argue that it does. D. Rule 412 Addresses the Admission of Evidence Against a Victim at Trial Not Discovery of Evidence Via a Third Party Through a Subpoena. Even if the Court determines that this defamation case is somehow a proceeding involving sexual misconduct, and even if this Court finds that Rule 412 somehow addresses evidence regarding the sexual misconduct directly at issue rather than other sexual behavior not at issue, Rule 412 still does not bar discovery from Jackie. The Federal Rules of Evidence are of course rules of admissibility rather than rules of discovery, and the Notes to Rule 412 make this clear by stating that [t]he procedures set forth in subdivision (c) do not apply to discovery of a victim s past sexual conduct or predisposition in civil cases, which will be continued [sic] to be governed by Fed. R. Civ. P. 26. Fed. R. Evid. 412 (Advisory Comm. Notes 1994). The Notes then advise that, with respect to discovery, a protective order under Federal Rule of Civil Procedure 26(c) is not warranted if the party seeking discovery makes a 12

14 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 14 of 19 PageID# 323 showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. Id. As has been amply demonstrated in Plaintiff s Memorandum and in this Reply, evidence that Jackie fabricated the fraternity gang rape and her subsequent interactions with Dean Eramo is plainly relevant to both Plaintiff s claims and Rolling Stone s defenses in the defamation action. Such evidence is only available through discovery from Jackie because it is Jackie that weaved the false tale to a national magazine and claimed to be a victim of an event that did not occur. Plaintiff cannot depose the supposed perpetrators of the gang rape recounted in the Rolling Stone article, because by all indications they do not exist. Plaintiff cannot depose any witnesses to the alleged gang rape at Phi Kappa Psi, because by all indications there was nothing to witness. The story originated solely with Jackie and the best way to prove it conclusively false is through discovery from Jackie herself. III. Jackie s Other Privilege Claims Lack Merit. Finally, Jackie s Opposition superficially suggests that several other privileges may protect her communications from disclosure, but she fails to provide any analysis or showing that any such privileges are actually applicable here. (See Opp n at ) For instance, Jackie baldly claims that Dean Eramo admittedly seeks evidence protected from disclosure by the University under Family Educational Rights and Privacy Act (FERPA), and that Dean Eramo did not contest that FERPA applies to the subpoena to Jackie. (Opp n at ) This is demonstrably false. Plaintiff made clear to Jackie s counsel in her pre-filing correspondence that FERPA applies only to disclosure of a student s records by the student s educational institution, and has no applicability whatsoever to a subpoena directed to an individual like Jackie. (Mem., Ex. D at 2); 34 C.F.R (FERPA s restrictions on disclosure apply to educational agencies and institutions which receive federal funds). Whatever applicability FERPA may have to 13

15 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 15 of 19 PageID# 324 Rolling Stone s discovery requests directed to the University of Virginia, it has no application to the instant subpoena to Jackie. If an individual communicates certain events to a university official, FERPA does not make discovery of the underlying facts of that sexual assault privileged from discovery from that individual herself just as a client s communication to a lawyer about the underlying facts of an event does not cloak those facts in a privilege that is immune from discovery from the client or other third parties. See, e.g., In re Allen, 106 F.3d 582, 604 (4th Cir. 1997) (underlying information does not become privileged from disclosure in discovery because it is communicated to an attorney). 4 Jackie cites no provision of FERPA (or any other law) that says otherwise, and instead attempts to shift the burden to Dean Eramo to demonstrate that FERPA does not apply. But FERPA contains no prohibition on discovery from an individual student, so Jackie s argument is little more than an illogical demand that Dean Eramo prove a negative. It is also an impermissible attempt to shift the burden to Dean Eramo when it is indisputably Jackie s burden to demonstrate the applicability of any claimed privilege. See, e.g., Bulow v. Bulow, 811 F.2d 136, 144 (2d Cir. 1987) ( It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are essential elements of the privileged relationship. ). Similarly, Jackie argues that she and Dean Eramo had a patient-counselor relationship that prohibits Dean Eramo from disclosing contents of certain of their communications. (See Opp n at 15.) But again, aside from failing to demonstrate that such a privilege applies to any 4 Jackie s Opposition claims that it makes no sense that FERPA would restrict the University s ability to disseminate Jackie s records but have no applicability to a subpoena served directly on Jackie herself. (Opp n at 16). In fact such a result is quite common in the law of privilege, as in the example of attorney-client privilege, as noted. Another example is the reporter s privilege, which in certain instances can prevent a party from obtaining information communicated by a source to a reporter from the reporter, but does not in any way restrict a party s ability to subpoena the same information directly from the source himself. See, e.g., Palandjian v. Pahlavi, 103 F.R.D. 410, 413 (D.D.C. 1984) (reporter s privilege belongs to and applies to the news agency, but the same information can be obtained directly from the source himself as he has no privilege against disclosure). 14

16 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 16 of 19 PageID# 325 interactions between Dean Eramo and Jackie, 5 Jackie cites no statute or case law suggesting that communications in Jackie s possession are not subject to production in response to a valid subpoena to her. Even if the issue here was Dean Eramo s documents rather than Jackie s, Jackie fails to explain how she has not waived any such privilege by voluntarily sharing the contents of her communications with Dean Eramo including actual copies of their correspondence with Rolling Stone. See, e.g., U.S. v. Bolander, 722 F.3d 199, 223 (4th Cir. 2013) (a patient waives the patient-psychotherapist privilege by voluntarily disclosing the substance of therapy sessions to third parties). Ultimately, Jackie fails to demonstrate the applicability of any privilege generally, and she fails to demonstrate the applicability of any privilege to any specific documents at issue, because she has not produced a privilege log as required by Federal Rule of Civil Procedure 45(e)(2). Finally, Jackie argues that the Motion to Compel is premature because the parties to the case have not yet produced documents. (See Opp n at ) Not only does Jackie fail to explain why this is at all relevant to the Motion to Compel, but she is also incorrect. The parties have in fact exchanged substantial document productions, and other third parties have already produced documents. Discovery in the case has been ongoing for months, and is set to conclude in March. There is no reason why Plaintiff should have to wait any longer for Jackie to comply with a subpoena that has been outstanding for four months. CONCLUSION For the foregoing reasons, and for the reasons stated in her Memorandum, Nicole Eramo, Plaintiff in the case of Eramo v. Rolling Stone LLC, et al., No. 3:15-cv GEC, currently 5 This statute applies to programs and associated persons providing services to victims of sexual or domestic violence, and defines those programs as public and non-profit agencies the primary mission of which is to provide services to victims of sexual or domestic violence. Va. Code (A). The statute also permits such disclosure in response to a court mandate such as a subpoena. Id. at 104.1(C). 15

17 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 17 of 19 PageID# 326 pending in the United States District Court for the Western District of Virginia, respectfully requests that the Court enter an order directing Jackie to comply with the subpoena attached as Exhibit A to the Memorandum. Dated: December 2, 2015 Respectfully submitted, By: /s/ Thomas A. Clare Thomas A. Clare (VA Bar No ) Elizabeth M. Locke (VA Bar No ) CLARE LOCKE LLP 902 Prince Street Alexandria, Virginia Telephone: (202) tom@clarelocke.com libby@clarelocke.com ATTORNEYS FOR PLAINTIFF NICOLE ERAMO 16

18 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 18 of 19 PageID# 327 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Nicole Eramo s Reply Brief in Support of her Motion to Compel Nonparty Respondent Jackie to Comply with Rule 45 Subpoena was served on the below counsel on December 2, 2015, via ECF (for those attorneys that have registered), or by (for those attorneys that have not). Billy B. Ruhling, II DimuroGinsberg, P.C King Street, Suite 610 Alexandria, VA Telephone: (703) bruhling@dimuro.com Pat A. Cipollone Rebecca R. Anzidei Philip J. O Beirne Stein Mitchell Cipollone Beato & Missner LLP 1100 Connecticut Avenue N.W., Suite 1100 Washington, D.C Telephone: (202) Fax: (202) pcipollone@steinmitchell.com pobeirne@steinmitchell.com ranzidei@steinmitchell.com Palma Pustilnik Staff Attorney Central Virginia Legal Aid Society 1000 Preston Avenue, Suite B Charlottesville, VA Telephone: (434) Fax: (434) palma@cvlas.org Attorneys for Nonparty Respondent Jackie Michael John Finney William David Paxton Gentry Locke Rakes & Moore P.O. Box Roanoke, VA Telephone: (540)

19 Case 1:15-mc GBL-IDD Document 11 Filed 12/02/15 Page 19 of 19 PageID# 328 Telephone: (540) Fax: (540) Elizabeth A. McNamara Samuel M. Bayard Davis Wright Tremaine LLP 1251 Avenue of the Americas 21 st Floor New York, New York Telephone: (212) Fax: (212) Alison B. Schary DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue NW, Suite 800 Washington, DC Telephone: (202) Fax: (202) Attorneys for Defendants Rolling Stone LLC, Sabrina Rubin Erdely, and Wenner Media LLC Dated: December 2, 2015 By: /s/ Thomas A. Clare Thomas A. Clare 18

20 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 1 of 7 PageID# 329 Exhibit A

21 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 2 of 7 PageID# 330 Charlottesville Police Department s Investigation into an Alleged Sexual Assault as depicted in Rolling Stone Magazine Article dated November 19, 2014 On November 19, 2014 an article appeared in Rolling Stone magazine depicting a violent sexual assault of a University of Virginia student identified as Jackie. That same day, University of Virginia President Teresa Sullivan requested that the Charlottesville Police Department initiate an investigation in an effort to confirm or dispel the incident as graphically described in the article. Having exhausted all investigative leads, our investigation concludes that there is no substantive basis to support the account alleged in the Rolling Stone article. Therefore, our investigation will remain suspended until such time as Jackie wishes to cooperate with investigators or other evidence comes to our attention to warrant further investigation. Investigation Although Jackie s story was told by Ms. Erdely in the Rolling Stone article, investigators were never afforded the opportunity to interview Jackie. In addition, federal laws governing privacy and protection of certain records in the possession of academic institutions obstructed our ability to access records that may have been relevant to our investigation. Nonetheless, our investigation revealed that Dean Nicole Eramo first learned from Jackie of an allegation of sexual assault on May 20, This disclosure came after Jackie was referred to the Dean because of poor grades. The disclosure was specifically that she went to a party at an unknown fraternity on Madison Lane and was sexually assaulted. Jackie s disclosure to Dean Eramo did provide some information that depicted a sexual act, but that information is inconsistent with the details that are reported in the Rolling Stone Magazine article of November 19, Dean Eramo provided Jackie with the options available per UVA protocol in place at that time. On April 21, 2014, Jackie again met with Dean Eramo and reported a physical assault that was alleged to have occurred on April 6, 2014 on the University Corner in the vicinity of Elliewood Avenue. According to Jackie she was struck in the face by a glass bottle. She further advised that her roommate at the time, a nursing student, assisted her in removing glass from her ( Jackie s ) face. In a subsequent interview by investigators, Jackie s roommate denied ever removing glass from Jackie s face. Further, she described Jackie s injury as an abrasion consistent with having fallen. According to Jackie she stood in the parking garage on Elliewood Avenue and called her mother. Yet, a subsequent search of phone records which we believe to be Jackie s failed to yield any evidence that

22 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 3 of 7 PageID# 331 such a call was made. In fact, no calls were made from April 5, 2014 from 8 p.m. to April 6, 2014 at 4 a.m. Further, a search of the police department s Computer Aided Dispatch records revealed that an officer responded to an unrelated call for service at 9 Elliewood Avenue, adjacent to the garage where Jackie was alleged to have made the phone call. The officer was on location for several minutes and would have likely been visible to Jackie had she been at that location during that same time frame During the course of her April 21, 2014 meeting with Dean Eramo, Jackie disclosed for the first time that she had been sexually assaulted at the Phi Psi fraternity house. Jackie advised Dean Eramo that she wanted her report to remain anonymous. The Charlottesville Police Department first became aware of Jackie s allegations on April 22, 2014, when an officer met with Jackie in the company of Dean Eramo and a University of Virginia police officer. During the course of that meeting, Jackie reported being verbally abused by four males on the University Corner earlier in the month. She further reported being followed by these subjects as one called out her name. According to Jackie, when she turned in the direction of the person who had called out to her, she was struck by an unknown object. She did not provide a detailed description of the subject to the officer, nor did she think she would recognize him if she were to see him again. Jackie further told the officer that she had photographs of the injury that she could provide if needed. The officer does not recall observing any injuries on Jackie s face at the time of the interview. Investigators reviewed a photograph of Jackie believed to have been taken during the week of April 11, The injury depicted in the photograph has the appearance of swelling above the right eye and an apparent abrasion on the upper cheek. In the opinion of the investigator, it did not appear consistent with being struck by a blunt object. In her meeting with the officers and Dean Eramo, Jackie further disclosed to that she had been sexually assaulted at the Phi Kappa Psi house in She stated that she reported it to the Dean s office, but not the police. She feared retaliation from the fraternity if she followed through with a criminal investigation. At the time of this disclosure, Jackie refused to provide any specific details regarding the alleged sexual assault. On May 1, 2014, Detective Jake Via met with Jackie in the presence of Dean Eramo regarding both the alleged physical assault on the Corner and the allegation of sexual assault in Jackie maintained that she did not want to proceed with any investigation of the physical assault, nor did she provide any disclosure as to the facts of the alleged sexual assault.

23 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 4 of 7 PageID# 332 Detective Via advised Jackie that her allegations would be fully investigated if she changed her mind and wished to pursue an investigation. Detective Via had no further contact with Jackie until early December As previously stated, on November 19, 2014, University of Virginia President Teresa Sullivan requested that the Charlottesville Police Department launch a criminal investigation into the details of the Rolling Stone article. Believing Jackie to be the person that he had spoken to in April of 2014, Detective Via called her and left a message offering both police and victim/witness support and assistance. On November 20, 2014, Detective Via again attempted contact with Jackie. This time Jackie responded and agreed to meet after the Thanksgiving break. On December 2, 2014, Jackie came to the Charlottesville Police Department headquarters accompanied by University Dean Laurie Casteen and legal counsel from the Legal Aid and Justice Center. While there Jackie declined, through legal counsel, to provide a statement or answer any questions. Since that time, despite numerous attempts to gain her cooperation, Jackie has provided no information whatsoever to investigators. In an effort to access certain records pertaining to Jackie that would aid in our investigation, efforts were made through her legal counsel to obtain her written consent. Those efforts, too, were met with negative results. The University of Virginia provided investigators access to relevant members of the Office of the Dean of Students who had knowledge of Jackie s previous contacts with their office, along with redacted copies of documents that reflect Dean Eramo s previous meetings with Jackie ; specifically those documents referencing the sexual assault, physical assault, and an anonymous sexual assault report. None of the documents we were given or had access to revealed any facts similar to what was disclosed in the Rolling Stone article. In order that investigators have to ability to identify members of the Phi Kappa Psi fraternity that may have information regarding this matter, an attorney on behalf of the fraternity provided investigators with a membership roster. Investigators were also provided with lease agreements and bank records dating back to During the course of the investigation, Investigators interviewed nine (9) of the fourteen (14) brothers who were living at the Phi Kappa Psi fraternity house in September of 2012 when the sexual assault is alleged to have occurred. None of those persons interviewed admitted to knowing Jackie, or being involved in a sexual assault on September 28, 2012.

24 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 5 of 7 PageID# 333 Furthermore, none of them admitted to having any knowledge of a sexual assault occurring in the fraternity house at any time when they were present. In addition, a questionnaire was created and sent to fraternity members. Nineteen (19) responses were returned. None of the respondents admitted to knowing Jackie, nor did they reveal any knowledge of a sexual assault having occurred at the fraternity house on September 28, The investigation further revealed no evidence of a party having taken place at the fraternity house on September 28, However, investigators did learn that there had been a formal at Phi Kappa Psi s sister sorority, Delta Gamma that evening. Several of the fraternity members attended the event. During the course of our investigation, investigators came into possession of a photograph that was time stamped September 28, 2012, 11:33 p.m. The photograph depicts the interior of the Phi Kappa Psi fraternity house. Present in the photograph is a male holding two chairs while standing in the main room. He is oriented to the side of the room closest to the stairs and side door. The photograph does not reveal any indication of a large party or gathering of people. A review of the bank records for the Phi Kappa Psi fraternity did not reveal any expenditures on or around September 28, 2012 that would reflect purchases for a party or large gathering. While, the Inter-Fraternity Counsel does not maintain records of scheduled events at fraternities from 2012, a review of What s Greek This Week from September 24-30, 2012 did not reveal any publicized event for the Phi Kappa Psi fraternity on September 28, The police department s Computer Aided Dispatch records also fail to indicate any calls for service to 159 Madison Lane on September 28, 2012 from 7 p.m. to September 29, 2012 at 5 a.m. In short, we cannot find any basis of fact to conclude that there was any event at the Phi Kappa Psi Fraternity house on the evening of September 28, Investigators also had occasion to interview two of Jackie s friends, both of whom gave interviews to national media correspondents. Both males report being told by Jackie that she was going out on the evening of September 28, 2012 with a person known as Haven Monahan. Neither had ever met Haven Monahan, but report previously text messaging with a person whom they believed him to be. In their interview with investigators, they both contradict Jackie s version of events in reference to where they met subsequent to the alleged sexual assault, her physical condition at the time they met, the time of day during which the meeting took place, the description of the assault, and their reactions to what they were allegedly told by Jackie. It should be noted that what Jackie is alleged to have described to these two witnesses is consistent with what was previously told to Dean Eramo and is inconsistent with the facts included in the Rolling Stone Magazine article.

25 Case 1:15-mc GBL-IDD Document 11-1 Filed 12/02/15 Page 6 of 7 PageID# 334 In an effort to further track down Haven Monahan, investigators reviewed the student listing for 2012, and found no one by that name. In addition, investigators conducted multiple internet searches using LINX, TLO, Pinger, Twitter, Facebook, and Google. No one having the name Haven Monahan was discovered. Several attempts were made to identify Monahan through a phone number that surfaced during the investigation. The number was listed with Bandwith.com. The carrier was Google voice. A court order was sent to Google with negative results. During the course of our investigation, a photograph was discovered that was believed to depict the person of Haven Monahan. Investigators were able to locate this subject who declined interview. His name was not Haven Monahan, nor was it Drew. Through legal counsel, the subject did proffer that he does not know Jackie, nor was he in the City of Charlottesville on September 28, The membership roster for the Phi Kappa Psi fraternity was reviewed for the name of Haven Monahan, and was also met with negative results. Supervisors employed at the University Aquatic and Fitness center were also interviewed by investigators regarding whether anyone by the name of Haven Monahan or Drew were ever employed as a lifeguard at the pool. None of those interviewed recalled such an employee. Further, a review of the employee roster failed to yield the name Haven Monahan or Drew. All the male subjects on the employee roster were contacted by phone or . Of those that replied, no one admitted to being the person described as Drew in the article, nor did they claim ever having a relationship with Jackie. Another male subject was identified during the course of our investigation. This subject was both a member of a fraternity (not Phi Kappa Psi) and worked at the Aquatic and Fitness Center at the same time as Jackie. This individual cooperated fully with investigators in the presence of legal counsel to include providing copies of his work schedule and financial records which may have been relevant to a dinner date that Jackie had with her alleged offender at the Boars Head Inn on the evening of September 28, Investigators turned their attention to the fraternity house in which this subject was a member in September They were provided the names of six (6) members who were living at the house at the time of this alleged incident; five (5) of the six (6) provided interviews. None of them knew Jackie, admitted to any involvement in a sexual assault having occurred on September 28, 2012, nor did they see or hear anything about a sexual assault occurring in the fraternity house at the time they lived there.