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, ) ) v. ) Case No. 3:15-cv GEC ) ROLLING STONE LLC, ) SABRINA RUBIN ERDELY, and ) WENNER MEDIA LLC, ) ) Defendants. ) ) MEMORANDUM IN RESPONSE TO PLAINTIFF S MOTION FOR ADDITIONAL TIME TO DEPOSE JACKIE AND NON-PARTY RESPONDENT S MOTION TO QUASH PLAINTIFF S SUBPOENA Defendants Rolling Stone LLC, Wenner Media LLC (collectively, Rolling Stone ), and Sabrina Rubin Erdely ( Erdely ) respectfully submit this memorandum in response to (1) Plaintiff s Motion for Additional Time to Depose Jackie (No. 3:15-cv-0023-GEC, Dkt. No. 54) ( Pl. Br. ); and (2) Non-party Respondent s Motion to Quash Plaintiff s Rule 45 Subpoena or in the Alternative for a Protective Order (No mc GEC, Dkt. No. 41) ( Resp. Br. ). PRELIMINARY STATEMENT No doubt informed by the fact that the report issued by the Department of Education, Office for Civil Rights (the OCR ) renders substantially true the Article s statements and implications challenged in this action, Dean Eramo has now shifted her focus to the truth or falsity of Jackie s description of her sexual assault. In doing so, she prejudges any evidence, labeling Jackie a serial liar who invented the story of her gang rape. 1 But this Court has 1 Pl. Resp. to Non-Party Respondent s Supp. Resp. in Opp. to Pl. s Motion to Compel Production, No. 3:15-mc GEC, Dkt. No. 29, at 21. See also Pl. Br. at 4 (calling the account in the Article almost entirely fictional ). 1 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 1 of 16 Pageid#: 1218

2 already correctly identified the central issues in this action. Its January 25, 2016 Memorandum Opinion (No mc GEC, Dkt. No. 34) ( Mem. Op. ) makes clear that while Jackie possesses knowledge relevant to the parties claims and defenses in this case, the particulars of Jackie s alleged assault are irrelevant to this action; instead, the crux of this case is defendants portrayal of Eramo and Jackie s communications with Eramo/UVA. Mem. Op. at 11. Given these rulings, it is plain that Jackie s deposition should go forward, but equally plain that several hours of protracted questioning is not necessary. In the course of discovery, Rolling Stone and Erdely have produced extensive transcripts and audio recordings documenting Erdely s hours of interviews with Jackie, which Jackie has had the opportunity to review. Despite Dean Eramo s contention to the contrary, there is no need for line-by-line questioning of over 100 pages of interviews of Jackie. Counsel for both parties can garner the information they need by asking Jackie if she disputes anything in the transcripts or audio recordings, or believes material statements were left out or taken out of context. In fact, based on Jackie s own representations, there does not appear to be a significant dispute about what Jackie told to Rolling Stone. Resp. Br. at 9. In the end, Jackie s fragile state, Dean Eramo s aggressive stance vis-à-vis Jackie in previous filings and statements to the press, and the weakness of Dean Eramo s claims all weigh against permitting Dean Eramo additional time to depose Jackie. Finally, Dean Eramo s contention that she should be given more time than Rolling Stone and Erdely to depose Jackie is unfounded. Accordingly, Rolling Stone and Erdely respectfully submit that Jackie s deposition should go forward, but should be limited to seven hours (split equally) and subject to reasonable accommodations to minimize the impact on Jackie s well-being. 2 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 2 of 16 Pageid#: 1219

3 FACTUAL BACKGROUND This defamation action arises out of an article titled A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA (the Article ), which was written by Defendant Erdely and published by Defendant Rolling Stone on November 19, 2014 and in its December 5, 2014 print edition. 2 The Article opens with the account by a young woman, Jackie, of her alleged gang rape at a Phi Kappa Psi fraternity party at UVA in September Article at 70. The Article goes on to detail Jackie s interactions with classmates, family, UVA administrators, and other sexual assault victims as she struggles to come to terms with the alleged rape. Jackie s story functions as the prism through which the Article addresses the broader issue of how colleges too often fail to adequately respond to alleged sexual assaults on campus. The troubling nature of the allegations Jackie reported to UVA a sexual assault by multiple men during a party at a popular, upper-tier fraternity sets up the central question of the story: What is the responsibility of university officials when they receive a report of this nature, even if the victim herself does not want to press forward with a formal action? Drawing upon interviews with a wide range of sources including experts, government officials, current and former students, sexual assault victims and their family members, and UVA President Teresa Sullivan the Article opines that UVA s approach of catering to victim choice, coupled with the reassurance of sympathetic administrators that any choice is the right one, often has the end result of coddling the victim into doing nothing. Id. at 74. The Article focuses on UVA for good reason. In November 2014, UVA was one of only 12 schools selected for a compliance review by the OCR. Article at 71. As discussed below, in September 2015, the OCR announced 2 Citations to the Article that follow will be to the print version, attached as Exhibit B to the Complaint. 3 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 3 of 16 Pageid#: 1220

4 the results of its compliance review, concluding that UVA had violated Title IX by, among other things, failing to investigate informal reports of sexual assault like Jackie s. The Article describes only a handful of interactions between Jackie and Dean Eramo. It is these interactions, rather than the underlying details of Jackie s gang rape, that form the basis of Dean Eramo s libel claim, and about which Jackie can be expected to provide the most relevant testimony at her deposition: In May 2013, Jackie reported to Dean Eramo that she had been sexually assaulted by several men at a fraternity party. Id. at 74. The Article states that Dean Eramo laid out for Jackie her options, including filing a criminal complaint with the police, initiating a formal complaint with the school s Sexual Misconduct Board, or pursuing an informal resolution through the university process. Id. The Article describes how Eramo presented each option neutrally, giving each equal weight and assured Jackie there was no pressure whatever happened next was entirely her choice. Id. After the May 2013 meeting, Dean Eramo ed Jackie a follow-up note thanking Jackie for sharing, saying I could tell that was very difficult for you, and restating that while she respected Jackie s wish not to file a report, she d be happy to assist if you decide that you would like to hold these men accountable. Id. at 75. Subsequent to this first meeting, Jackie claims that when she asked Dean Eramo why UVA does not publish all of its sexual assault statistics (a fact that is not disputed), Dean Eramo answered wryly, Because nobody wants to send their daughter to the rape school. Id. at 75. Dean Eramo is also reported to have connected Jackie with a fourth-year student who was active in a student-run sexual-assault education organization that doubles as a support group. Id. at 76. In April 2014, Jackie reported to Dean Eramo that several men outside a bar threw a bottle at her and injured her face. Jackie believed that these men recognized her from her advocacy work on behalf of sexual assault survivors on campus. Id. at 76. In this meeting, Jackie identified Phi Kappa Psi as the location of her gang rape and told Dean Eramo that she had learned of two other women who had been raped at the Phi Kappa Psi house. Id. The Article states that, [a]s Jackie wrapped up her story, she was disappointed by Eramo s nonreaction when she had been expecting shock, disgust, horror. Id. The Article also states that Jackie miserably reminded Eramo that she didn t feel ready to file a complaint, and notes that Eramo, as always, understood. Id. The Article reports that UVA commenced an investigation of Jackie s claims in September 2014, after Rolling Stone had started looking into Jackie s case, a fact that Phi Kappa Psi and UVA President Theresa Sullivan confirmed. Id. at 77. In connection with this investigation, that Article reports that Dean Eramo told Jackie and her friend Alex Pinkleton in 4 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 4 of 16 Pageid#: 1221

5 September 2014 that she d learned through the grapevine that all the boys involved have graduated. Id. The Article also reports that, prior to publication of the Article, Jackie was worried about what might happen to her once this article comes out. Id. at 70. It notes the negative reaction of her fellow students to Jackie s cooperation with Rolling Stone, observing that even some of Jackie s friends see her going public as tantamount to betrayal. Id. In this context, the Article notes that Dean Eramo had joined those questioning her cooperation on the Article: Lots of people have discouraged her from sharing her story, Jackie tells me with a pained look, including the trusted UVA dean to whom Jackie reported her rape more than a year ago. Id. In large measure, Plaintiff does not dispute the accuracy of the Article s reporting on these facts, but rather takes issue with the conclusions and opinions that Erdely and Rolling Stone drew from these events and her other reporting. 3 On this motion, Dean Eramo sidesteps the statements she actually challenges in the Article and instead conclusorily (and falsely) characterizes the Article as stating or implying that she was indifferent to Jackie s supposed gang rape, sought to conceal and cover it up, and abused Jackie, discouraged Jackie from reporting her gang rape, intentionally coddled Jackie into doing nothing, and took no action in response to Jackie s report. Pl. Br. at 1, 3-4. Far from casting Dean Eramo as a villain, as Plaintiff suggests (id. at 3), the Article provides a nuanced description of Dean Eramo, underscoring that Dean Eramo is beloved by students and beloved by survivors, who consider her a friend and confidante, and recognizing that she surely has among the most difficult jobs at UVA. Article at 74. The Article acknowledges that Jackie repeatedly calls her an asset to the community and that other sexual assault survivors consider her their best advocate and den mother. Id. at 76. What the Article does criticize is UVA s failure to actively investigate 3 Of these facts, Eramo s complaint primarily challenges the rape school comment and also claims that the Article falsely states that she discouraged Jackie from reporting her rape to the police or pursuing disciplinary action. Cplt. 13, 175. In context as it must be read the Article states only that Dean Eramo discouraged Jackie from sharing her story with Rolling Stone, not from going to the police or pursuing disciplinary action. To the contrary, the Article makes clear that Dean Eramo offered to assist Jackie if she elected to hold these men accountable. It is unclear whether Dean Eramo disputes that she discouraged Jackie from participating in the Article. 5 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 5 of 16 Pageid#: 1222

6 Jackie s and other women s claims of sexual assault out of deference to victim choices. See id. at 74, After publication, the Article came under intense scrutiny from other media organizations, calling into question details of Jackie s account of her rape. On December 5, 2014, promptly after discovering information that first cast doubt on Jackie s account of her gang rape, Rolling Stone effectively retracted the Article and issued an editorial note (followed by a revised version on December 6) that acknowledged discrepancies in Jackie s account of her gang rape and apologized for certain editorial decisions. Rolling Stone then asked the Columbia University Graduate School of Journalism to conduct a comprehensive independent investigation that resulted in a report that found a number of errors relating to the Article s reporting on Jackie s alleged gang rape. Along with publishing the Columbia Journalism report, Rolling Stone then formally retracted the Article and apologized to the UVA community. 4 Subsequently, in September 2015, the OCR completed its compliance review of UVA and issued a Letter of Finding concluding, among other things, that UVA failed to respond in a prompt and equitable manner to many reports of sexual violence that were not filed as formal complaints. Letter of Finding at 2. 5 The Letter specifically called out Dean Eramo, by title if not name, finding that the multiple roles played by Dean Eramo during the sexual misconduct complaint process created the appearance of a conflict of interest (id. at 15), and that Dean 4 Just before the release of the Columbia Journalism report, the Charlottesville Police Department ( CPD ) announced the results of its investigation into Jackie s alleged sexual assault. A copy of the CPD statement is available at News/2711/635?arch=1&npage=5. Plaintiff states that the CPD s press release demonstrated that Rolling Stone s claims about Dean Eramo were entirely false (Pl. Br. at 5), but the CPD statement does not say anything of the kind. The CPD statement largely documents the same interactions between Jackie and Dean Eramo that appear in the Article. Most critically, it does not dispute that the UVA administration failed to take any action to investigate Jackie s claims or warn the UVA community, even after Jackie identified the fraternity and alleged the existence of two additional rape victims in April The Letter of Finding is available at 6 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 6 of 16 Pageid#: 1223

7 Eramo s statements in an interview with a college radio station (conducted over a month prior to the Article s publication) contributed to a hostile environment for victims of sexual assault at UVA (id. at 21). Most importantly, the Letter of Finding concluded that UVA, and specifically Dean Eramo, failed to investigate allegations (including allegations of rape and gang rape and those involving fraternities) raised by students who chose not to proceed through formal or informal processes, in violation of Title IX. Id. at Echoing Rolling Stone s criticism of UVA s deference to victim choice almost precisely, the Letter of Finding states: Id. at 17. OCR also completed review of files of two reports of sexual assault in 2013 and OCR finds that at least in these two instances the University did not promptly investigate information in cases that involved fraternities. In one of the cases, the Chair of the SMB [Dean Eramo] took the written position that unfortunately, the actions of our office are limited to the assistance and support of the survivor at this point as [the student who reported the sexual assault] does not wish to file a complaint through the SMB. In addition to reflecting the absence of a prompt investigation, the files do not reflect the University evaluating steps necessary to protect safety of the broader University community. ARGUMENT Under Rule 26, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense, but the Court has an obligation to limit the frequency or extent of discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(1), (b)(2)(c)(iii). Showing special solicitude to non-parties, Rule 45 provides that a party issuing a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Fed. R. Civ. P. 45(d)(1). With these general principles in mind, Defendants respectfully submit that the reasonable course of action is to permit Jackie s deposition to go forward, but to limit its 7 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 7 of 16 Pageid#: 1224

8 duration to seven hours (equally split), with reasonable accommodations to protect Jackie s wellbeing. I. DEPOSING JACKIE IS WARRANTED, BUT NO MORE THAN SEVEN HOURS IS REQUIRED. The Court s January 25, 2016 Memorandum Opinion informs the proper resolution of Dean Eramo s and Jackie s motions here. That decision makes clear that deposing Jackie is warranted because her testimony is highly relevant to certain fundamental issues in this case, but it also indicates that the relevant issues are circumscribed and may easily be addressed in a seven-hour deposition. Two key aspects of that decision help guide the proper resolution of the current dispute. First, the Court concluded that Jackie s communications with Rolling Stone and Erdely about both her rape and her interactions with Dean Eramo and other UVA officials are highly relevant to the claims or defenses in the defamation action. Mem. Op. at 9. Specifically, the Court reasoned that these communications with Rolling Stone are relevant to Dean Eramo s argument that Rolling Stone disregarded red flags about Jackie s story, and to Defendants defense that they exercised due diligence with Jackie s story and had no reason to doubt her credibility. Id. The Court also found that Jackie s underlying communications with Dean Eramo and UVA are relevant because Plaintiff contends that the Article falsely portrays her interactions with Jackie. Id. This reasoning supports the conclusion that deposing Jackie at least on limited topics is warranted. In the course of discovery, Defendants have produced extensive transcripts and audio recordings documenting Erdely s hours of interviews with Jackie and the documentation Jackie provided to corroborate her story. See Pl. Br. at 1 (noting Defendants have produced over 100 single-spaced pages of notes and transcripts, and four hours of audio recordings ); see 8 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 8 of 16 Pageid#: 1225

9 also id. at 8-9 (noting that Jackie conducted some ten or more interviews with Erdely and Rolling Stone and exchanged numerous s and phone calls with Erdely and that [t]he tape recordings of just two of these ten interviews run to four hours of audio ). Jackie is a key witness in a position to answer questions about whether the Article accurately reports the information she provided. Similarly, Jackie is a key witness to answer questions about the truth or falsity of what she told Erdely and Rolling Stone about her interactions with Dean Eramo. Given that the Court has already ruled on the relevance of these issues, and the Court s previously expressed preference for oral testimony over written questions, an oral deposition of Jackie is warranted under the circumstances. Second, the Court s previous ruling makes clear that the scope of issues properly addressed to Jackie is more circumscribed than Dean Eramo suggests, and that she does not need 6.5 hours to depose Jackie. Under the Court s previous ruling, Plaintiff is entitled to ask Jackie about what Jackie told Rolling Stone about her gang rape and her interactions with Dean Eramo and other UVA officials, but not to probe the truth or falsity of her underlying sexual assault. The Court stated in its January 25 Order: The court believes that the particulars of Jackie s alleged assault are irrelevant to the claims and defenses of the defamation action and are disproportionate to Eramo s need for the information. The crux of the dispute in the defamation action is defendants portrayal of Eramo and Jackie s communications with Eramo/UVA. The specific, graphic details about what may or may not have occurred on the night of September 28, 2012 have no bearing on these issues. Mem. Op. at 11. Simply by clarifying that Dean Eramo is not entitled to probe Jackie about the underlying facts of her alleged sexual assault, the Court will be able to avoid significant avenues of questioning, as well as the conflict predicted by Plaintiff. Pl. Br. at 10. Moreover, Plaintiff s counsel can save time by focusing on the crux of the dispute Jackie s interactions with 9 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 9 of 16 Pageid#: 1226

10 Eramo rather than probing in excruciating detail all aspects of what Jackie told Rolling Stone concerning her assault. With respect to the rest of the transcripts and audio tapes, both parties can obtain the relevant information they need by asking Jackie questions about whether Jackie disputes that she communicated anything contained in transcripts or believes that material statements she made to Erdely were left out or taken out of context. Indeed, these issues appear to be all but resolved. Defendants provided to Jackie s counsel copies of the transcripts and audio recordings documenting what she said to Rolling Stone on February 17, 2016, more than one month ago. Having had ample time to review those materials, Jackie s counsel confirms that there is no dispute as to everything that Respondent said to Rolling Stone, and notes that it is without doubt that the transcripts and tape recordings will be a more complete record of what was told to Rolling Stone almost two years ago. Resp. Br. at 9. Moreover, with respect to the underlying interactions between Jackie and Dean Eramo, surely Plaintiff s counsel does not need 6.5 hours to question Jackie about the handful of meetings and communications between Jackie and Dean Eramo. See supra at 4-5. For these reasons alone, Plaintiff has not shown good cause to extend the presumptive seven-hour limit for the deposition. See Fed. R. Civ. P. 30(d), Advisory Committee Note to 2000 Amendments. Other factors also militate against subjecting Jackie a non-party sexual assault victim to prolonged and potentially traumatizing questioning by Plaintiff s counsel. In filings and statements to the press, Dean Eramo s counsel has taken such an aggressive stance with respect to Jackie calling her a serial liar that the National Organization of Women has issued a public statement criticizing Dean Eramo s court filings for display[ing] a very troubling pattern of abuse towards Jackie which cannot be allowed to continue. Resp. Br. at 5, 12 ( It is exactly this kind of victim blaming and shaming that fosters rape culture, re-victimizes those 10 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 10 of 16 Pageid#: 1227

11 brave enough to come forward, and silences countless victims. ). 6 As a self-described tireless supporter of victims of sexual assault (Cplt. 33), Dean Eramo s personal attacks on the credibility of an alleged sexual assault victim are perplexing. Yet, there can be no realistic dispute that subjecting Jackie to 6.5 hours of questioning by Plaintiff s counsel (and potentially 10 hours of questioning overall, in one day (Pl. Br. at 2)) could prove harmful to her mental health and well-being. Finally, although Defendants do not view this as the proper forum to argue the merits, they agree with Respondent s argument that the Court may consider the weakness of Plaintiff s claims in deciding whether or not to grant Plaintiff s requested discovery. Resp. Br. at In this action, Plaintiff targets subjective expressions of opinion in the Article about how UVA should have responded to Jackie s serious allegations, as well as the adequacy of the University s response to the reports of numerous other women spanning decades. See Resp. Br. at 10. Dean Eramo s claims misconstrue statements that are not of and concerning her and take language out of context, asserting alleged implications that strain any reasonable reading of the Article. At the same time, she ignores the multiple positive statements about Dean Eramo that the Article attributes to sexual assault survivors, including Jackie. See supra at 4-5. Furthermore, as Respondent correctly notes, the OCR s Letter of Finding seriously undermines Dean Eramo s entire case. Resp. Br. at 11. The OCR s conclusions render the core of the Article s statements about Dean Eramo and UVA s response to sexual assault allegations to be substantially true. Nevertheless, Rolling Stone and Erdely do not share Jackie s view that it would be practicable to put off her deposition until after summary judgement (id. at 13-14) because Jackie s testimony is relevant to another central defense that Rolling Stone and Erdely will raise on their summary 6 See also National Organization for Woman, An open letter to UVA President Teresa A. Sullivan, at 11 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 11 of 16 Pageid#: 1228

12 judgment motion namely, that they published each of the challenged statements firmly believing them to be true and that they acted diligently in investigating and reporting on Jackie s interactions with Dean Eramo. In other words, Dean Eramo will not be able to carry her burden by establishing with clear and convincing evidence that Defendants published the Article with actual malice. Mem. Op. at 9. See CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008) ( [e]stablishing actual malice is no easy task, because the defamation plaintiff bears the burden of proof by clear and convincing evidence ) (quoting Carr v. Forbes, Inc., 259 F.3d 273, 282 (4th Cir.2001)). In short, Defendants respectfully submit that Jackie s deposition should go forward, but should be limited to (1) testing the accuracy of the documentary record with respect to Jackie s communications with Rolling Stone a process that need not (and should not) involve line-byline questioning and (2) probing Jackie s underlying interactions with Dean Eramo and UVA, a topic that is relatively limited in scope. With those limitations, there is no need to extend the deposition beyond seven hours. II. THE PARTIES SHOULD SPLIT THE SEVEN HOURS EQUALLY. Plaintiff also argues that additional time to depose Jackie is necessary because all parties have indicated in correspondence that they intend to question Jackie intensively, and that Rolling Stone s counsel has indicated that Defendants will want a full 3.5 hours to question Jackie. Pl. Brief at 9. Plaintiff further argues that an equal split of seven hours is prejudicial to Plaintiff in that Rolling Stone has already had the opportunity to interview and question Jackie multiple times over the course of many hours. Id. (emphasis in original). Plaintiff not only mischaracterizes Defendants position on the length of time needed to depose Jackie, but puts forth an argument that is unmoored from logic or basic fairness. 12 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 12 of 16 Pageid#: 1229

13 Counsel for Rolling Stone and Erdely has indicated that Defendants want to reserve the right to share equally in the seven hours allotted for Jackie s deposition as a matter of basic fairness and equality among litigants, and because Defendants could need 3.5 hours to question Jackie. It is simply impossible for Rolling Stone and Erdely to say ahead of time what questioning may be necessary until hearing Dean Eramo s line of questioning at the deposition, and there is no basis for Dean Eramo to suggest that Defendants should preemptively give up their right to equal time. Moreover, Defendants tried to limit the time necessary for deposing Jackie on their end by working cooperatively with Jackie s counsel to agree on stipulations that would cover many of the key issues for examination. But, as indicated in Respondent s brief, counsel for Dean Eramo scuttled that effort by taking the position that any stipulations entered into between Defendants and Jackie would only expand the scope of the deposition and increase the amount of time Dean Eramo would need for the deposition. Resp. Br. at 2-3. Left with no other options, Rolling Stone and Erdely reserved their default right to use half of the allotted seven hours set forth in the Court s February 17 Order. Nor is there any support for Dean Eramo s argument that splitting the time equally is unfair to her. Pl. Br. at As noted above, Jackie s testimony is highly relevant to at least one of Defendants anticipated defenses. See Mem. Op. at 9. Defendants have just as much a right to discover relevant facts to support their defenses as Dean Eramo has to develop her claims. No authority or principle of logic or fairness would permit Plaintiff to get a disproportionate share of the time to depose Jackie simply because Rolling Stone interviewed Jackie before the Article was published. Erdely conducted those interviews for the purpose of publishing an article, not with a view to developing defenses in this litigation. Dean Eramo chose to file this lawsuit, not Defendants. It is an ironic twist that Dean Eramo wants to penalize 13 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 13 of 16 Pageid#: 1230

14 Rolling Stone and Erdely for doing their due diligence by interviewing Jackie extensively before this dispute arose. III. ROLING STONE AND ERDELY DO NOT OBJECT TO REASONABLE ACCOMMODATIONS TO HELP ALLEVIATE THE IMPACT OF THE DEPOSITION ON JACKIE S WELL-BEING. Rolling Stone and Erdely have no objection to the Court ordering reasonable accommodations to help reduce the stress of the deposition on Jackie and minimize its impact on her mental health. For instance, Defendants agree with Jackie s suggestion that all parties and counsel should be ordered not to disclose the location of the deposition. Resp. Br. at 14. Defendants also agree that the deposition should take place at the location previously offered by Jackie s counsel. At that location, Jackie feels comfortable and gives her some measure of control over who can access the building, and Defendants have no objection based on convenience. Id. Finally, Defendants have no objection to the possibilities raised by the Court on the March 18, 2016 conference call, including breaking the deposition up into several sessions to minimize the burden on Jackie. CONCLUSION For the foregoing reasons, Rolling Stone and Erdely respectfully submit that Jackie s deposition should go forward, but should be limited to seven hours (split equally) and subject to reasonable accommodations to minimize the impact on Jackie s well-being. 14 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 14 of 16 Pageid#: 1231

15 Dated: March 22, 2016 Respectfully submitted, ROLLING STONE LLC SABRINA RUBIN ERDELY WENNER MEDIA LLC /s/ Michael J. Finney W. David Paxton (VSB No ) Michael J. Finney (VSB No ) GENTRY LOCKE 10 Franklin Road S.E., Suite 900 P.O. Box Roanoke, VA Telephone: (540) Fax: (540) Elizabeth A. McNamara (admitted pro hac vice) Samuel M. Bayard (admitted pro hac vice) DAVIS WRIGHT TREMAINE LLP 1251 Avenue of the Americas, 21st Floor New York, New York Telephone: (212) Fax: (212) Alison B. Schary (admitted pro hac vice) 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 15 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 15 of 16 Pageid#: 1232

16 CERTIFICATE OF SERVICE I hereby certify that on this 22th day of March, 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/ Michael J. Finney 16 Case 3:15-cv GEC Document 56 Filed 03/22/16 Page 16 of 16 Pageid#: 1233