Tag: defamation lawsuit

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Day 8: Rolling Stone fact checker, Jackie’s friends testify

For a second day, former Rolling Stone fact-checker Elisabeth Garber-Paul took the stand to explain why she believed Jackie, the student whose fake gang rape story sent the University of Virginia campus into uproar two years ago.

“She seemed to really care about getting this story right,”  testified Garber-Paul. “She was totally comfortable with having her peers know she was the Jackie in the story.”

Unlike other witnesses in this trial, now in its eighth day, Garber-Paul turns directly toward the jury to explain that she conducted a pair of two-hour conversations with Jackie.

“Four hours in one week is a lot for a college student,” Garber-Paul testified.

The fact-checker said documentation supplied by reporter Sabrina Rubin Erdely included a 431-page file including contemporary emails, alleged injury photos, and the transcript of congressional testimony about Jackie’s ordeal from the UVA administrator who had first introduced Jackie to the Rolling Stone reporter.

But the witness said it wasn’t just written records that seemed to validate the story; it was also Jackie’s way of recounting her alleged rape.

“It was like she had these snapshots in her head– 360-degree memories,” said Garber-Paul.

The images seemed so clear, vivid and painful that Jackie seemed at one point to be losing her breath, and Garber-Paul offered to pause the process.

“She said, ‘Let’s keep going.'”

The fact-checker said the college student spoke as someone recounting a terrifying ride.

“It was like she could close her eyes and see what was going on at every stop,” said Garber-Paul. “I believed everything in the article to be absolutely accurate.”

After lunch, the plaintiff fired back by blasting the decision not to reach out to Jackie’s former friend Kathryn Hendley, or “Cindy,” whom the article quoted as calling herself a “hookup queen” and supposedly telling Jackie she should have enjoyed getting raped.

“Why didn’t you have fun with it?” Cindy is quoted in the story. “A bunch of hot Phi Psi guys?”

“Those quotes were too perfect, weren’t they?” demanded plaintiff’s attorney Andy Phillips. “You didn’t contact her because you knew she’d deny them, didn’t you?”

The fact-checker disagreed. The lawyer then suggested that Garber-Paul should have noticed that Jackie was hiding witnesses who could corroborate her story.

“Isn’t that a giant, waving, red flag?” asked Phillips.

“I didn’t realize that she was in any way preventing us,” replied Garber-Paul.

However, the lawyer refused to retreat and reminded her that Jackie must have possessed contact information for her former friends. Finally, Garber-Paul agreed that Jackie may have been stonewalling.

“This is not specialized fact-checker information,” concluded Phillips. “This is common sense.”

The afternoon included testimony from two police officers revealing that Jackie refused to cooperate in their attempts to criminally investigate her alleged gang rape or a subsequent tossed-bottle incident.

But the bulk of the afternoon was consumed by playing video depositions of two of Jackie’s former friends, Kathryn Hendley and Ryan Duffin. Both testified that the Rolling Stone article departed in dramatic fashion from their memories of the aftermath of Jackie’s fateful date.

Each said that Jackie had trumpeted her plan to meet up with her mysterious suitor, “Haven Monahan,” on September 28, 2012, the night of her alleged gang rape. Jackie would claim that Monahan then orchestrated a five-man assault in which Jackie was forced to perform oral sex.

It was a bizarre climax to a month, the friends testified, of catfishing, creating fake messages in an ultimately unsuccessful effort to woo Duffin by making him jealous.

Hendley and Duffin disputed key details in the Rolling Stone account, saying they saw no blood or injuries on the friend who would later claim herself the victim of a three-hour, seven-man attack atop the shards of a smashed glass table.

“A complete fabrication” Duffin called the story, while Hendley– aka Cindy– called Rolling Stone’s account “a fictionalized version of my life.”

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After a Tuesday afternoon recess, reporter Sabrina Rubin Erdely returns to court. Photo Hawes Spencer

In the video, laughing off her portrayal as the callous “hookup queen,” Hendley reveals that when Erdely finally contacted her a few weeks after the article came out, she felt sorry for the reporter.

“I definitely understood,” she said, “what it was like to be lied to by Jackie.”

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Eramo’s status: Public figurehood will determine how lawsuit plays out

Courtesy Rolling Stone

A phalanx of lawyers assembled to argue motions in former UVA associate dean Nicole Eramo’s lawsuit against Rolling Stone, along with plaintiff Eramo herself, August 12 in U.S. District Court in Charlottesville.

Eramo’s $7.85 million defamation lawsuit against the magazine, writer Sabrina Rubin Erdley and Wenner Media is scheduled for a jury trial in October, and Rolling Stone attempted to get the suit thrown out on the grounds that Eramo is a public official and must meet a higher standard and prove the November 2014 article “A Rape on Campus” was published with actual malice, which means a reckless disregard for the truth.

The now-discredited article told the story of Jackie, who claimed she had been gang raped at Phi Kappa Psi fraternity in 2012, a tale that almost immediately fell apart and that Rolling Stone retracted in April 2015. The piece also has generated lawsuits by the fraternity and three of its members, the latter of which has been thrown out.

Eramo’s team had three lawyers at the plaintiff’s table, led by Tom Clare, who is also representing ousted Penn State president Graham Spanier, who is suing the school for breach of contract for releasing a report that found he helped cover up Jerry Sandusky’s child molestations.

Rolling Stone has five attorneys listed in its court filings, and lead attorney Elizabeth McNamara is currently representing Tony Schwartz, Donald Trump’s Art of the Deal ghostwriter who has denounced the Republican presidential candidate.

Clare kicked off the proceeding by pointing out that the Rolling Stone article is “quite literally” on exhibit as a “cautionary tale” of media mistakes in the Newseum in D.C.

The article mentioned Eramo 33 times, said Clare, including in a picture that was photoshopped to show her giving a thumbs up gesture to a victim of sexual assault while “Stop victim blaming” placard-carrying protesters marched outside her window.

“Is this too mean?” Rolling Stone’s fact checker had queried in red ink. The magazine “ignored dozens of warnings and red flags” about Jackie’s credibility, said Clare, and “irreparably damaged” Eramo’s reputation by its portrayal of her as an indifferent administrator responsible for handling victims of sexual assault at the University of Virginia.

“It depends on the spin you put on this,” said Judge Glen Conrad, when Clare asserted that the article showed Eramo as unfit to perform her duties and demonstrating a “want of integrity.”

Clare’s partner, Libby Locke, argued that Eramo was a private, not a public, figure who was not responsible for setting policy at the university. As an intake official, Eramo was the one who would get the call from assault victims, and she was legally precluded from discussing those interactions. And although she was head of the Sexual Misconduct Board at UVA, Eramo hadn’t done anything in that role in a year, said Locke.

“She was interviewed 28 times by the campus newspaper and TV stations,” said Judge Conrad. “She was the face of the university on sexual assault.”

Conrad said he anticipates the case will go to trial, with Eramo as a limited purpose public figure, a designation that requires her to prove actual malice on the part of Rolling Stone.

“This may be the most clear case of actual malice the Fourth Circuit has seen,” assured Locke.

When Rolling Stone republished the article online December 5, 2014, with the editor’s note that the magazine had lost confidence in Jackie’s credibility, that constitutes actual malice, said Locke, because it stood behind the reporting regarding Eramo, including the statement Eramo denies she said about why there are no statistics on sexual assault: “Nobody wants to send their daughter to the rape school.”

“Rolling Stone knows how to issue a retraction, and it did so on April 5,” said Locke.

For Rolling Stone attorney McNamara, there were multiple individual grounds to dismiss the case, most notably because Eramo is a public figure and she failed to establish actual malice.

“Rolling Stone has apologized to her,” McNamara said. “Rolling Stone took prompt action within hours when it became apparent there were questions.” Up until December 5, the defendants believed Jackie was credible, she said.

And Eramo’s claim that it was actual malice for Rolling Stone to publish an apology sends a “chill to publications that they correct errors at their peril,” said McNamara. “Publishing a retraction or apology is evidence of not actual malice.”

She asked that the lawsuit be dismissed, a request Conrad seems unlikely to agree to, but he said he will rule on whether Eramo is a public figure.

A two-week trial is scheduled to begin October 11.

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Court orders ‘Jackie’ deposed in Rolling Stone lawsuit

Jackie faces Rolling Stone and Nicole Eramo's lawyers.

In UVA former associate dean Nicole Eramo’s ongoing lawsuit with Rolling Stone, Judge Glen Conrad ruled Monday that Jackie’s request to prevent her deposition would be denied and she is scheduled for at least seven hours of depositions today.

Former UVA student “Jackie,” who claimed she was gang raped at a fraternity party in Rolling Stone’s now discredited article “A Rape on Campus,” has been fighting subpoenas in the legal battle Eramo, whose title at UVA is now listed as executive director of assessment and planning, filed last May. Eramo’s defamation suit seeks $7.5 million from Rolling Stone and the article’s author, Sabrina Erdely.

In a court document, Jackie opposed the deposition of her doctor as well as herself on the grounds that “the severe harm” she would suffer  “greatly outweighs the limited utility of such discovery in light of the real issues in this case.”

Additionally, Jackie’s lawyers argued that Eramo’s actions in the case were “harmful” and described her as using “aggressive attacks” against Jackie in both the media and the court.

“Plaintiff’s conduct in this case has done more to damage her reputation and discredit any claim she may have had to being a compassionate counselor and advocate of sexual assault victims than any magazine article,” the motion reads.

While the court granted that Jackie’s psychologist would “not be deposed or otherwise subjected to discovery” at this time, Jackie herself will be deposed on April 7 at a “mutually convenient location” that is not being publicly disclosed.

Eramo and Rolling Stone’s attorneys will each get to question Jackie for 3.5 hours. Eramo had requested additional time, and may depose Jackie a total of five hours over two days, and request more time from the court. Any recordings or transcripts of the deposition will be confidential.

“I’ve never seen anything like it,” says attorney Dave Heilberg. “It’s a civil case and discovery is getting a lot more attention” than other cases.

And because Jackie never reported her alleged assault to police—Charlottesville Police investigated and found no evidence of the assault she described to Rolling Stone—she does not have the same protections of a victim in a crime that was prosecuted, says Heilberg.

 

 

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Confidential conversations: Jackie forced to hand over Rolling Stone texts

Jackie faces Rolling Stone and Nicole Eramo's lawyers.

The U.S. District Court in Charlottesville ruled January 25 to grant “in part” Nicole Eramo’s motion to compel Jackie, the woman at the center of a now-discredited Rolling Stone article about a gang rape at the University of Virginia, to release relevant communications in Eramo’s defamation suit against Rolling Stone.

Of the six types of documents Eramo, associate dean of students at UVA, requested, the court granted four in full and two in part. Of particular importance, the court ruled that Jackie, no longer a student at the university, must turn over her correspondence with Sabrina Rubin Erdely, Rolling Stone, Eramo and UVA.

“The court finds that the communications between Jackie and defendants, and between Jackie and Eramo/UVA, are highly relevant to the claims and defenses in the defamation action, and that discovery of such communications is proportionate to the needs of the case,” Judge Glen Conrad ruled.

Jackie has been reluctant to hand over these documents since Eramo filed the initial subpoena in July, and her lawyer argued that the demands infringe upon her privacy. Specifically, Jackie contended that she should not have to turn over her communications with Eramo and UVA because of the privacy implied by “patient-counselor privilege.”

Conrad, however, dismissed this argument by saying that it was “without merit.”

“Even assuming that the court could find that this statute establishes a patient-counselor privilege,” Conrad’s memorandum reads, “it appears that Jackie may have waived such privilege by voluntarily disclosing the contents of her communications with Eramo and UVA to defendants.”

Eramo’s motion also requested Jackie’s communications under the pseudonym “Haven Monahan,” the name Jackie gave to her date the night she was allegedly raped and a pseudonym through which Eramo believes she was “catfishing” to attract student Ryan Duffin. While Duffin complied with the initial subpoena and handed over his texts with Monahan and Jackie, Eramo still wants Jackie’s communications with Duffin, as well as those she authored under the Monahan pseudonym.

Jackie allegedly used this alias primarily when speaking to her friend Duffin, texting him and claiming to be Monahan, who did not understand why Jackie would not go out with him. Although Duffin says multiple times that he believes her, his later texts reveal that he has doubts about her truthfulness.

“We could find no evidence that Haven ever was at UVA,” Duffin writes in a text to Jackie. “People Search turned up nothing. Even though he dropped out, he should still show up on it. We had more reasons.”

While the court was unwilling to grant Eramo full access to these documents, saying not all of them were “within a reasonable scope of discovery,” it did grant Eramo the communications between Monahan and Duffin, as well as “any other individual whose name Jackie had provided to defendants prior to the article’s publication.”

Eramo’s request for all of Jackie’s communications about the Rolling Stone article was also granted “in part,” primarily to protect Jackie’s privacy and because not all of her communications are relevant to the defamation suit.

“In an effort to balance Jackie’s privacy interest in the communications with their apparent relevance,” the memorandum reads, “the court will limit Demand No. 16 [Jackie’s communications about the Rolling Stone article] to only Jackie’s communications regarding the article itself and exclude any communications that refer to the details of her alleged assault.”

The court emphasized that any “graphic details” associated with Jackie’s alleged assault were unnecessary for Eramo’s defamation suit and thus would not be granted.

As a final measure of precaution to protect Jackie’s privacy, the court ruled that any documents she provides in response to the motion will be marked “confidential.”

Read Jackie’s texts online at c-ville.com.

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haven monahan texts 9-27-12

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jackie texts ryan duffin 12-14