Tag: defamation

If yesterday was an emotional sob fest, Wednesday’s proceedings in UVA administrator Nicole Eramo’s defamation lawsuit against Rolling Stone were much calmer, with the leading ladies in the suit—plaintiff Eramo and defendant/reporter Sabrina Rubin Erdely—both taking the stand and both sparring with opposing counsel.

It was not without emotion, however. At the lunchtime recess outside the courthouse, Eramo “was accosted by a woman who called her a ‘rape apologist,’” said Eramo’s attorney Libby Locke, an incident the lawyer says proves the ongoing damage to her client’s reputation from the November 2014 Rolling Stone article, damage for which Eramo is suing for nearly $8 million.

And in a bombshell request, Locke attempted to enter a video in which Erdely told students at her University of Pennsylvania alma mater that she’d made mistakes while a student reporter, which Locke described as plagiarizing material for an interview that never happened with folk singer Michelle Shocked and making dubious attributions.

Judge Glen Conrad will be mulling over how pertinent that is to the case and whether to admit the video. “I’m a little bit disappointed this is coming up so late, on the third day of trial,” he said.

The day began with Rolling Stone attorney Elizabeth McNamara’s cross examination of Eramo, questioning how she’d handled the report made by Jackie, the alleged gang rape victim in the Rolling Stone story.

Phi Kappa Psi, the fraternity where Jackie claimed seven men attacked her, was already on UVA’s radar before Erdely appeared on the scene after Jackie said she’d met two other women who had similar experiences there, according to Eramo’s testimony.

“Under Title IX, it’s required the university undertake an investigation,” said McNamara, who asked Eramo if the campus was warned about the alleged gang rape.

“It was not my purview to send warnings,” replied Eramo, who also noted that while Jackie’s assault had taken place September 28, 2012, she didn’t report it until many months later and it wasn’t until May 2014 that she said there were other victims.

Eramo reported to her boss, Dean Allen Groves, in a May 13, 2014, summary that Jackie said “several of them forced her to give them oral sex.” Eramo testified that she met with a national Phi Kappa Psi representative in September 2014 about a “potential rape at the chapter.”

The fraternity’s investigation resulted in no brothers stepping forward with additional information, Eramo said, admitting she was frustrated by the response. At the same time, as word of the upcoming Rolling Stone article spread, Phi Kappa Psi hired local public relations practitioner Pam Fitzgerald in October 2014 to handle fallout from the story, according to testimony.

“…It seems the fraternity is planning to throw me totally under the bus,” Eramo said in a November 14, 2014, text.

Eramo seemed in good spirits early in day, responding to McNamara’s questions with, “Yes ma’am,” and smiling from the witness box. But as the questioning continued, the jovial banter with McNamara dissipated.

And then McNamara played Eramo’s September 2014 WUVA interview, in which she’s questioned about the fact that while UVA expels students for cheating, it’s never expelled anyone for sexual assault.

Eramo’s testy response to student interviewer Catherine Valentine—”I think I’ve answered your question—became the basis for the Office of Civil Rights September 21, 2015, report that statements from Eramo, the chair of the Sexual Misconduct Board, “constituted the basis for a hostile environment” for the handling of sexual assault at UVA.

The testimony also indicated Eramo had been eager to talk to Erdely for the Rolling Stone article, and when Vice President of Student Affairs Pat Lampkin “suggested I not be the institutional voice on this,” said Eramo, she wrote in an e-mail to Lampkin and the student affairs hierarchy, “I’m afraid it may look like we are trying to hide something for me not to speak with her.”

McNamara guided Eramo through the article, pointing out all the times Erdely noted Eramo was beloved by the survivors.

The attorney also tallied the apologies Rolling Stone made for its major journalistic gaffe. Eramo was not swayed by the four apologies. “I don’t believe it was sincere,” she said, because Rolling Stone, while admitting error in its Jackie account, still stood by its reporting on Eramo.

In a final effort to minimize the harm Eramo suffered from the story, McNamara introduced a letter about a salary increase to $110,000 Eramo got in August 2015, and Eramo testified she’s now making $113,000. She was never disciplined or reprimanded and she received letters of praise from her bosses, including a handwritten note from UVA President Teresa Sullivan, reminded the attorney.

McNamara also pointed out that while Eramo held the title of deputy Title IX coordinator for students, she called Jackie a “serial fabulist.”

“Yes,” said Eramo.

Eramo read in its entirety an April 2015 letter she sent to Rolling Stone about how it added “insult to injury” in its portrayal of her as an “unsympathetic and manipulative false friend” more interested in keeping UVA’s rape statistics low. The article, wrote Eramo, “deeply damaged me both personally and professionally.”

Her name and a Photoshopped picture “remain forever linked” to the article that damaged her reputation, she said.

Erdely’s appearance on the stand around 5pm—nine hours into the proceedings—perked up weary jurors and spectators.

Eramo attorney Locke wasted no time in presenting articles longtime journalist Erdely had written about sexual assault, and accused the reporter of being critical of medical licensing boards for failing to protect patients from convicted gynecologists, of juries that don’t convict date rapists, of the Catholic Church for covering up sex crimes and of the military for covering up sexual abuse.

“I take issue with how you’re characterizing my articles,” said Erdely.

“You can take issue,” replied Locke. “It’ll be up to the jury to decide.”

Included in the plaintiff’s massive exhibit stack is Erdely’s 430-page reporting file of the notes she took while interviewing. The notes, she explained, were not every word from an interview. “You’re trying to get the important things for the article, not necessarily a record for litigation,” said Erdely.

Locke hammered on the premise that Erdely all along was focused on “institutional indifference” in her story pitch and in interview requests for her article about rape culture on college campuses.

Referring to an e-mail Erdely sent to Eramo asking for an interview, said Locke, “You don’t tell Eramo your article is about institutional indifference.”

“My article is not about institutional indifference,” said Erdely.

The trial, which began Monday, is expected to last 12 days, with Erdely back on the stand Thursday.

C-VILLE’s coverage of the trial continues tomorrow. 

Nearly two years after Rolling Stone put UVA in the national spotlight with an article called “A Rape on Campus,” 100 potential jurors crammed into U.S. District Court October 17 for the start of a 12-day trial to determine whether the magazine, reporter Sabrina Rubin Erdely and Wenner Media LLC defamed former UVA associate dean Nicole Eramo.

The story of first-year Jackie’s brutal gang rape in 2012 at Phi Kappa Psi roiled the university community with angry protests, vandalism and a suspension of fraternity social events—until Jackie’s story unraveled. Charlottesville police investigated and could find no evidence the attack took place, an investigation with which Jackie refused to cooperate. Rolling Stone asked the Columbia School of Journalism to investigate, and its scathing 13,000-word assessment called it “a journalistic failure that was avoidable.” Rolling Stone retracted the story.

In May 2015, Eramo filed suit seeking $7.85 million. Phi Kappa Psi and three of its members have also sued. The members’ suit was thrown out, but the fraternity’s case is scheduled to be heard next year.

Widespread publicity was a concern with seating a jury, hence the 100 citizens called in to make up a jury of 10, including three alternates. However, when the jurors were asked, nine had heard nothing at all about the article that became a national sensation.

Even last week, Rolling Stone filed hasty motions for sanctions against Eramo when it learned her lawyers had provided ABC’s “20/20″ with deposition videos that ABC aired October 14—three days before the trial was scheduled to begin.

The show featured Eramo, who described her fear of being fired after the story came out, and Erdely, who said she had believed Jackie.

“I have a feeling the judge is not happy they leaked it before trial,” says legal expert David Heilberg, who is not connected with the case. “That’s really bad form because it prejudices the jury pool.”

Judge Glen Conrad ruled that any depositions turned over to “20/20” could not be used in the trial. But, as Heilberg pointed out, Erdely is going to have to testify anyway because a civil trial does not offer Fifth Amendment protections against self-incrimination.

During the lengthy voir dire, potential jurors were questioned about their connections to UVA. Not surprisingly, 61 of them worked at or had attended the school, or had a family member who did. They were also asked if they’d ever been plaintiffs in a civil case—and whether they thought there’s too much litigation. They were asked if they had been victims of sexual assault, or if members of fraternities were more likely to commit sexual assault, the latter a question asked by Rolling Stone’s attorney Scott Sexton that Judge Conrad called argumentative and did not allow.

It was after 1pm when 34 jurors were dismissed, and Conrad plowed on through the lunch hour with more questioning.

The inquiry that had more than half the remaining jurors raising their hands: Who just doesn’t trust the media?

It was after 2pm when Conrad reminded the hungry jurors that jury duty was “one of the most important functions citizens can perform.” He also mentioned the trial was scheduled to last 12 days and that could include Saturdays.

He asked whether anyone had compelling reasons why they couldn’t serve, and more than a dozen lined up. “At $40 a day, I don’t feel very important,” said one male, who explained he was shorthanded at work.

“I can assure you that’s not a good enough reason,” said Conrad—although that juror was not on the final list of eight women and two men, who were named around 3:30pm.

At that point, the judge fed the jurors a snack and told them to decide how long they wanted to be in court each day. They agreed to a 10-hour day starting at 8am through 6pm.

At 4:30pm, the judge’s clerk read for an hour the 9,000-word article in question, “A Rape on Campus.”

The jury also heard Erdely in an interview she did on WNYC radio a few days after the article came out. What was shocking to her, she said on the show: “[Jackie] was brushed off by her friends and the administration.”

She also mentioned the administration’s “level of indifference,” which Eramo contends in her suit was Erdely’s purpose in publishing the article—to portray UVA as indifferent to rape and more interested in protecting its reputation than assisting victims of sexual assault.

First thing October 18, jurors heard a podcast of a November 27, 2014, Slate interview with Erdely, in which host Hanna Rosin calls the gang rape scenario “unbelievably extreme” and asked Erdely whether she contacted the alleged rapists, a question Erdely doesn’t answer.

As Erdely continued to talk in the podcast about how “doing nothing” about sexual assault at UVA “is perfectly fine” and survivors can go “unburden themselves to the dean, Eramo wiped tears from her eyes at the plaintiff’s table.

Backstory

September 28, 2012—Jackie goes on alleged date to Phi Kappa Psi, where she claims she’s gang raped.

May 2013—Jackie tells Nicole Eramo she’s been forced to perform oral sex on five men, but isn’t willing to say on whom or where it happened.

November 19, 2014—Rolling Stone publishes “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.”

December 5, 2014—”Our worst nightmare,” Erdely writes in an e-mail. We have to issue a retraction.” Instead, Rolling Stone adds editor’s note saying the magazine’s trust in Jackie was misplaced.

March 23, 2015—Charlottesville Police announce finding no evidence of the gang rape Jackie described.

April 5, 2015—Columbia School of Journalism publishes “What Went Wrong?”, an indictment of the Rolling Stone story.

May 12, 2015—Eramo files suit against Rolling Stone et. al., seeking $7.5 million in damages and $350,000 in punitive damages.

Updated 11:25am October 18 with early morning trial coverage and timeline.

Correction October 21: The date of Jackie’s alleged assault was September 28, 2012.

C-VILLE’s coverage of the trial continues tomorrow.