31 Jan 2016

Judge orders ‘Jackie’ to turn over communications: A federal judge officially has ordered the young woman at the center of a debunked Rolling Stone article to turn over communications about her alleged sexual assault.

A federal judge officially has ordered the young woman at the center of a debunked Rolling Stone article to turn over communications about her alleged sexual assault.
U.S. District Judge Glen Conrad penned an order filed in federal court Monday compelling the cooperation of “Jackie,” the young woman whose account of a brutal gang rape at a 2012 fraternity party during her freshman year at the University of Virginia served as the centerpiece of a now-retracted article about the culture of sexual assault on college campuses.
Published in November 2014, the article created a firestorm of controversy but soon fell apart under intense scrutiny, with Rolling Stone saying in December 2014 that their trust in Jackie was “misplaced.” In January 2015, Charlottesville police said it could not find evidence that the alleged rape ever occurred, a subsequent review by the Columbia University School of Journalism called the article a “journalistic failure” and Rolling Stone retracted the story in April 2015.
In the aftermath, UVa associate dean Nicole Eramo sued Rolling Stone and the article’s author, Sabrina Rubin Erdely, for defamation. As the UVa administrator tasked with aiding sexual assault survivors, Eramo says the article portrayed her as uncaring and callous toward Jackie’s rape claims. She is seeking $7.5 million for the damage done to her career and reputation in the fallout of the article’s publication.
Since her lawsuit was filed in May, Eramo has asked Jackie turn over communications related to her alleged rape, but after several unsuccessful attempts, Eramo asked that a court compel Jackie to cooperate. Jackie’s attorneys have argued that their client’s communications should not be turned over for three reasons — they are protected by a rule that precludes evidence related to an alleged sexual assault being admissible in court, they are irrelevant and unduly burdensome to the case, and that communications between Eramo and Jackie are protected by patient-counselor privilege.
In his writings, Conrad disagreed with aspects of each of those arguments; specifically, Conrad noted that the federal rule protecting alleged victims of sexual assault from turning over evidence does not apply in “defamation action involving statements concerning sexual misconduct” if the evidence is deals with the veracity of the alleged offense. Further, Conrad said that rule dealt more with the admissibility of evidence than its discoverability, and that the patient-counselor privilege that Jackie’s attorneys argued for was unmerited, as Virginia Code does not extend that privilege to any authority, and because Jackie’s voluntary disclosure of her communications to Rolling Stone and Erdely would waive that privilege anyway.
Conrad also wrote that many of the communications Eramo’s attorneys sought were very much relevant to the defamation allegations and that because Eramo and Rolling Stone have turned over their communications with Jackie, Eramo was entitled to corroborate those documents with Jackie’s.
As such, Conrad ruled that Jackie would have to turn over all communications between herself and Erdely, Rolling Stone and Eramo, as well as all communications with UVa, as they relate to her alleged sexual assault.
The judge partially granted the request for Jackie to turn over communications between “Haven Monahan” and Ryan Duffin, between “Haven Monahan and any other individual whose name was previously disclosed to defendants prior to the article’s publication” and between Jackie and any previously disclosed individual that mentions Haven Monahan. Duffin was a friend of Jackie’s around the time of her alleged rape, and Eramo’s attorneys contend that Haven Monahan was the moniker of a fictitious love interest Jackie made up.
Conrad further granted a request for Jackie to turn over communications with anyone related to the original article, but stipulated that only communications made before Dec. 5, 2014, would be admissible and that they could not contain details of Jackie’s alleged assault. He denied a motion forcing Jackie to turn over any “Internet, message board, email and social media postings” in which she referenced herself as a victim of an alleged sexual assault on campus.

All of documents produced, the judge said, will be marked as confidential and treated as such.

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