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 Plaintiff, Case No. 3.:15-cv GEC v. ROLLING STONE LLC, et al. Defendants. NON-PARTY RESPONDENT S OPPOSITION TO PLAINTIFF S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF Dean Eramo s Motion for Leave is a transparent attempt to circumvent this Court s Orders and further harass and abuse Respondent (and her counsel for asserting Respondent s clear rights under the law and protecting her from Dean Eramo s attacks. Without any legal or practical justification, Plaintiff seeks additional briefing, after the close of discovery, in support of her baseless demand for the production of documents that do not exist, regarding a topic this Court has already ruled is not the proper subject of further discovery. Continuing her pattern of wrongfully attacking anyone who opposes her, Dean Eramo also levels baseless and offensive allegations against Respondent s counsel in her quest to wring millions of dollars out of her fatally defective claims. Counsel for Respondent have acted with the utmost candor and propriety here, as in all matters in which they are engaged. Plaintiff s meritless and untimely motion should be denied and Respondent should be awarded the costs and fees associated with Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 1 of 7 Pageid#:

2 defending against Dean Eramo s increasingly offensive actions. 1 Dean Eramo does not even attempt to cite any legal support for her request for additional briefing because none exists. Nor do the baseless allegations and attacks that litter her motion provide any basis on which to further extend this needless dispute. As Respondent has reiterated ad nauseam, there are no documents anywhere in Respondent s possession, custody or control, responsive to Request 15. Period. Respondent is not withholding any such documents. If anything, the matters Dean Eramo seeks to raise in her proposed additional brief actually disprove her spurious allegations and only serve to confirm that Respondent has diligently and thoroughly complied with this Court s Orders. The Yahoo records Plaintiff belatedly obtained confirm that (1 the address had not been accessed for years and (2 was not accessed at any time after the filing of this case until Respondent s counsel did so, solely for the purpose of further confirming that no responsive documents exist even arguably in Respondent s possession, custody, or control. They do not. Dean Eramo s unhinged insistence to the contrary neither changes this fact nor serves as a basis for her motion to compel. The federal courts are often confronted with a party s complaint that its opponent must have documents that it claims not to have. Such suspicion is, however, insufficient to warrant granting a motion to compel. In re Lorazepam & Clorazepate Antitrust Litig., 219 F.R.D. 12, 17 (D.D.C In fact, Dean Eramo does not really argue otherwise. When one sifts through her most recent stream of baseless accusations and abuse, two things become clear. Dean Eramo admits she is already in possession, from another source, of the only responsive to Request 15 1 Respondent notes that, despite being entitled to seek compensation under Rule 45(d for the undue expense already suffered in responding to Dean Eramo s requests, Respondent had not previously done so because she has no desire to continue to engage in any disputes with Dean Eramo and merely seeks to be left alone. Unfortunately, the costs of Dean Eramo s continued unnecessary harassment of Respondent cannot be ignored. Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 2 of 7 Pageid#:

3 ever alleged by anyone to exist. What Dean Eramo really wants (to quote her supplemental motion is an explanation for why [Respondent] does not have possession of responsive documents. This totally warrantless and inappropriate demand is the actual basis for Dean Eramo s continued attacks on Respondent (and her pro bono counsel. There is no requirement in this Court s Order or Memorandum Opinion that Respondent provide an explanation in connection with the production of any documents, nor do the Federal Rules require any such explanation in connection with documents produced subject to a Rule 45 subpoena. As this Court has stated, [i]f [a nonparty] does not have documents responsive to [a party s] subpoena, it need not produce any... Similarly, if [a nonparty] has only limited responsive documents, then that is all that it is required to produce those documents within its possession, custody, or control. 77 Const. Co. v. UXB Int'l, Inc., No. 7:13-CV-340, 2013 WL , at *3 (W.D. Va. Nov. 18, See also Arista Records LLC v. Does 1-14, No. 7:08CV00205, 2008 WL , at *6 (W.D. Va. Dec. 22, 2008 (denying motion to compel where [nonparty] Virginia Tech cannot produce what it does not have. [T]he court is unaware of any obligation defendant has to provide detailed information about each step taken to locate this information. And plaintiff fails to provide any legal authority to show defendant is under such an obligation. Gassaway v. Jarden Corp., No JTM, 2013 WL , at *3 (D. Kan. Dec. 19, Moreover, this Court has already ruled that the matters addressed by Request 15 are of such marginal relevance to this case that Plaintiff was not permitted to ask Respondent a single question about them during her deposition. MR. CLARE: I think we should be entitled to ask her whether she s the author of these documents. THE COURT: I disagree. I see it s of no importance. All that relates to matters that were not made known to Rolling Stone. Transcript of April 4, 2016, Hearing (Apr. 4 Tr., p. 58: Now Dean Eramo attempts to use this 3 Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 3 of 7 Pageid#: 1773

4 baseless series of motions as a vehicle to circumvent the Court s ruling and continue to harass Respondent with questions that are of no importance to this matter. In fact, counsel for Dean Eramo admitted as much on social media. In a recent Facebook comment to an article posted about this case, Mr. Charles Glasser, an experienced media attorney and adjunct faculty member of the NYU School of Journalism, made the eminently reasonable observation that what Jackie did or didn t do is not relevant or probative of Actual Malice on [Rolling Stone s] part. Ex. A, Facebook Screenshot. Ms. Locke responded: Ms. Locke s unguarded comments contain two important admissions. The first is that counsel for Dean Eramo have always understood that their case is focused elsewhere and does not depend on the evidence sought from Respondent, contrary to their repeated statements to this Court when seeking to justify the abusive and seemingly never-ending discovery sought from Respondent. Even more troubling, however, is Ms. Locke s confession that Respondent has only been subjected to this stream of attacks in the media and elsewhere because her lawyers forced us to invoke the court at every turn. Dean Eramo s counsel have repeatedly intimated that their increasingly vitriolic and misguided attacks on Respondent, and now on her counsel, were somehow a justifiable response to Respondent s assertion of her rights. Now Ms. Locke admits 4 Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 4 of 7 Pageid#: 1774

5 it openly on social media. The Court has already properly rejected Dean Eramo s suggestion that Respondent and her counsel have acted inappropriately in any way by vigorously opposing Dean Eramo s repeated demands. In fact, the Court explained to Dean Eramo s counsel that Respondent s efforts, represent the fact that [Respondent] understands the rule of law. (Apr. 4 Tr., p. 39:1-2. It is becoming increasingly clear that Dean Eramo and her counsel either do not understand the rule of law, or do not respect it. They now seek sanctions against a law firm representing a non-party sexual assault victim pro bono, in response to subpoena requests so overbroad and offensive that Plaintiff abandoned most of them rather than defend them before this Court. Plaintiff s Motion to Show Cause was meritless when it was filed and it remains so. No amount of additional briefing will change that. Respondent has already been deposed and discovery in this case has closed. Whatever evidence Dean Eramo hopes she can find to survive summary judgment in this case, Respondent does not have it. CONCLUSION Dean Eramo s campaign of abuse against Respondent, and now her counsel, must end. No basis exists to grant Plaintiff s Motion for Leave and Respondent requests the Court deny Plaintiff s motion in its entirety and award costs and fees incurred by Respondent in connection with these motions. Dated: May 31, 2016 Respectfully submitted, /s/ Rebecca Ruby Anzidei Rebecca R. Anzidei (VA Bar No Philip J. O Beirne (VA Bar No STEIN MITCHELL CIPOLLONE BEATO & MISSNER LLP 1100 Connecticut Ave., N.W., Ste Washington, D.C Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 5 of 7 Pageid#:

6 Tel: Palma E. Pustilnik (VA Bar No CENTRAL VIRGINIA LEGAL AID SOCIETY 1000 Preston Avenue, Suite B Charlottesville, VA Tel: ( palma@cvlas.org Steven D. Rosenfield (VA Bar No Jeffrey Fogel (VA Bar No E. Jefferson Street Charlottesville, VA Tel Fax attyrosen@aol.com COUNSEL FOR RESPONDENT Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 6 of 7 Pageid#:

7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Respondent s Opposition to Plaintiff s Motion for Leave to File Supplemental Brief was served on the below counsel on May 31, 2016, via ECF. Thomas A. Clare (VA Bar No Elizabeth M. Locke (VA Bar No CLARE LOCKE LLP 902 Prince Street Alexandria, Virginia Telephone: ( tom@clarelocke.com libby@clarelocke.com COUNSEL FOR PLAINTIFF NICOLE ERAMO 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, NY Telephone: ( lizmcnamara@dwt.com samuelbayard@dwt.com W. David Paxton (VA Bar No Michael J. Finney (VA Bar No GENTRY LOCKE 10 Franklin Road, S.E., Suite 900 P.O. Box Roanoke, VA Telephone ( Paxton@gentrylocke.com finney@gentrylocke.com COUNSEL FOR DEFENDANTS Philip J. O Beirne Philip J. O Beirne (VA Bar No Case 3:15-cv GEC Document 86 Filed 05/31/16 Page 7 of 7 Pageid#:

8 Case 3:15-cv GEC Document 86-1 Filed 05/31/16 Page 1 of 1 Pageid#: 1778