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UVA Rape Story Collapses; Duke Lacrosse Redux
Topic Started: Dec 5 2014, 01:45 PM (60,413 Views)
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http://www.nbc29.com/story/32282353/federal-judge-issues-decision-on-jackie-subpoena


Federal Judge Issues Decision on 'Jackie' Subpoena
Posted: Jun 22, 2016 11:38 AM CST
Updated: Jun 22, 2016 9:47 PM CST

RELATED DOCUMENT: Jackie Subpoena Decision 06-22-2016

CHARLOTTESVILLE, Va (WVIR) -

A federal judge has decided he will not force the woman at the center of a now debunked magazine article to give up any more documents related to the underlying circumstances of her story.

Wednesday, a judge denied a motion by Nicole Eramo to compel a University of Virginia student referred to as “Jackie” to give up additional documents.

Eramo, an associate dean of students at UVA, is suing Rolling Stone Magazine, its publisher, and author Sabrina Rubin Erdely over the publication of “A Rape on Camps.” Eramo is seeking $7.5 million in her lawsuit.

Rolling Stone Magazine published Erdely’s article in its November 2014 issue. The piece described Jackie being gang raped at the Phi Kappa Psi fraternity house at UVA in September of 2012. The magazine redacted and apologized for the article after a review found factual issues within the piece.

Eramo’s defamation lawsuit claims “A Rape on Campus” cast her as the chief villain. Her legal team has been seeking access to depositions from Jackie and her doctor, as well as other documents to help argue their case. Lawyers for Jackie have been fighting those legal actions.

Jackie did produce documents in February in response to a subpoena from Eramo's lawyers. However, Jackie did not turn over anything referencing “Haven Monahan”, the fake person she's alleged to have created.

Eramo's lawyers want access to Jackie's texts and emails - including the ones they believe she sent while posing as Monahan - to prove she made everything up and that Rolling Stone should have been able to figure out the story was not credible.

Attorneys for Eramo filed court documents in May, claiming they have proof that Jackie is Monahan, and that she created a Yahoo email account using that fake name. In the original article, Jackie claimed Monahan was the person who took her to the fraternity house.

Jackie's legal team said they did a forensic collection on her computer and phone for content related to Monahan. They say Jackie doesn't have anything.

The judge said in his order Wednesday that the effort by Jackie’s team was good enough.

The judge also decided that there will be no sanctions against Jackie's legal team for accessing the Haven Monahan email account.

http://ftpcontent.worldnow.com/wvir/documents/Eramo-Jackie-Subpoena-Decision-062216.pdf
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Joan Foster

Protect the Liar. This is justice today.
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Assistant to The Devil Himself
So, given this giant cluster****, will universities now just report rape claims to the police and let them handle the reports?

Probably not.
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http://www.dailyprogress.com/starexponent/news/judge-denies-motion-to-compel-more-cooperation-from-jackie/article_d08d0c9e-38b8-11e6-a4d9-5b5d5ac10c9a.html

Judge denies motion to compel more cooperation from 'Jackie'

Posted: Wednesday, June 22, 2016 4:35 pm

BY DEAN SEAL

A federal judge has denied a motion to compel more cooperation from “Jackie” in a heated defamation lawsuit between Rolling Stone magazine and a University of Virginia associate dean.

Attorneys for Nicole Eramo, the UVa administrator suing Rolling Stone magazine for $7.85 million, were in Charlottesville’s federal court on Monday to argue that Jackie, a third party in the suit, had not yet fulfilled a federal order to hand over documents deemed relevant to the lawsuit.

Jackie’s account of her own brutal gang rape at a UVa fraternity house served as the centerpiece of a controversial Rolling Stone article that stirred widespread condemnation of the university and its Greek life; the details of her story fell apart under scrutiny, and the article was retracted in April 2015.

Eramo, an administrator tasked with providing support for student survivors of sexual assault, filed her lawsuit a month later, alleging that her career, reputation and personal health suffered after the article inaccurately depicted her in a negative light.

Attorneys for Eramo have sought cooperation from Jackie since last July, but did not receive any until a federal judge ordered Jackie last January to turn over all communications related to her alleged rape and to sit for a deposition.

That order has led to a maelstrom of terse emails and strained negotiations between Eramo and Jackie’s legal teams; Eramo has asked to throw out statements made in Jackie’s deposition, while Jackie has insisted that she is a third-party to the suit, as well as a sexual assault victim, who should be not have to participate in the legal proceedings.

Judge Joel C. Hoppe noted the tension between the legal teams in Monday’s hearing, where he took up a motion from Eramo seeking documents penned from an email address said to belong to “Haven Monahan,” a man identified in the article as having allegedly brought Jackie to the fraternity house and participated in her assault.

In their own investigation into Jackie’s claims, Charlottesville police said they found no evidence that Monahan ever existed, and Eramo’s attorneys have long contended that Monahan was a moniker created by Jackie to engender romantic feelings in one of Jackie’s love interests.

In court, Eramo’s attorneys said that a subpoena of Yahoo! Inc. conclusively proved that Jackie had created the email address and that Jackie’s attorneys had accessed that email account in recent months. In their motion, Eramo’s counsel demanded that Jackie turn over documents known to exist and to have been produced from that email address, or at least provide an explanation for why those documents may no longer be in her possession.

Jackie’s counsel rebuffed the notion that they were withholding those documents, and insisted that they had complied with the federal order to the fullest extent that they were able.

After admonishing each side to be more communicative with one another, Hoppe said he would take time to review the case. The following Tuesday, Hoppe ruled in favor of Jackie, denying Eramo’s motion and concluding “the steps taken by Jackie’s counsel were relatively straight forward and appear to have exhausted all known areas of inquiry for responsive communications currently in Jackie’s possession.”

“Plaintiff’s evidence that Jackie may have once possessed documents responsive to Demand No. 15 does not lead the Court to conclude that further explanation from Jackie or her counsel will to lead to the discovery of additional unproduced documents,” Hoppe wrote. “Thus, any further explanation of the Respondent’s search process is unnecessary and not calculated to lead to a stone unturned.”

Rolling Stone is facing two other lawsuits related to the retracted article - one from the UVa chapter of Phi Kappa Psi and another from three alumni fraternity members.

Dean Seal writes for the (Charlottesville) Daily Progress.
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http://www.dailyprogress.com/news/local/eramo-now-letter-a-publicity-stunt/article_565c4296-3bd8-11e6-8064-1bbcd88a2acb.html

Eramo: NOW letter ‘a publicity stunt’

BY DEAN SEAL | Posted: Sunday, June 26, 2016 3:58 pm

The University of Virginia associate dean embroiled in a defamation lawsuit wants a federal order forcing the National Organization for Women to hand over documents related to an open letter she believes to be “a publicity stunt” manufactured by a legal opponent.

In the months since UVa administrator Nicole Eramo brought a $7.85 million defamation lawsuit against Rolling Stone magazine for its article “A Rape on Campus,” Eramo has tried repeatedly to compel the cooperation of “Jackie,” the former UVa student whose account of a brutal gang rape served as the centerpiece of the now-retracted story.

Eramo, who alleges that she was smeared by the debunked article, has asked Jackie to turn over all communications she’s had related to her alleged rape. At each step, attorneys for Jackie have asked for their client to be left alone, citing protections afforded to sexual assault victims and insisting that her participation is not necessary for the advancement of the lawsuit, of which she is only a third party.

Weeks before a judge signed a federal order compelling Jackie to cooperate, the National Organization for Women came to Jackie’s defense with an open letter to UVa President Teresa A. Sullivan. In the Jan. 6 letter, signed by leaders from the organization’s national, state and Charlottesville chapters, the organization decries the “deeply disturbing actions” of Eramo, and asks that UVa “put a stop to … a re-victimization of [Jackie.]”

“Dean Eramo has demanded that Jackie produce years of her most private, personal communications with her family, friends, even counselors,” the letter reads. “This has not only threatened Jackie’s dignity and privacy, but also the dignity and privacy of numerous other student survivors on your campus.”

Last week, UVa spokesman Anthony de Bruyn said the university had no comment on the lawsuit, as “Eramo is pursuing her legal action in a personal capacity, not as an employee of the university. … UVa remains focused on implementing important initiatives aimed at enhancing the safety and wellbeing of all members of its community.”

While Jackie was ordered on Jan. 25 to turn over documents in the lawsuit and sit for a deposition — each of which has stirred more disharmony between counsel for Jackie and Eramo — Eramo’s attorneys are now accusing Jackie’s attorneys of having orchestrated the production of the open letter, in the hopes of drumming up support for Jackie and her noncompliance.

According to court documents, Eramo served NOW with a subpoena on May 3, asking that it turn over any communications with the Central Virginia Legal Aid Society and the Stein Mitchell Law Firm — two groups that are representing Jackie — related to Jackie, Eramo or any aspect of the retracted article and the lawsuit.

When it responded May 13, NOW stated that it had no communications with the Central Virginia Legal Aid Society pertaining to the open letter, but that it did have such communications with Stein Mitchell. However, it refused to produce those documents on the grounds that “the communications are not relevant and that the subpoena imposes an undue burden,” according to court documents

NOW also said in that response that the subpoena was purposed with “burdening and embarrassing NOW in retaliation for its public criticism of Dean Eramo and the university.”

On June 3, attorneys for NOW and Eramo discussed the subpoena, noting that Rolling Stone had intended to use the open letter as evidence in the defamation lawsuit. According to recently filed court documents from Eramo, the magazine has “directly and indirectly indicated that [it] believes that the open letter is relevant evidence in the defamation action.”

“[Attorneys for Rolling Stone] have questioned several witnesses about the open letter in depositions and have used the open letter as an exhibit in several depositions,” the filing reads.

An attorney for Rolling Stone did not respond to a request for comment on the matter.

On June 7, NOW again refrained from providing the requested communications, so one week later, Eramo filed a motion in federal court in Washington, D.C., to compel NOW’s cooperation with her requests. The motion was filed on the grounds that the requested documents are indeed relevant to the discovery portion of the suit, and that the subpoena is not unduly burdensome as it relates to “a very specific and narrow set of topics” discussed between NOW and Stein Mitchell.

The motion notes that while Eramo does not believe NOW’s open letter is admissible in the defamation suit, which is set for trial in October, she intends to be prepared for Rolling Stone’s attempted use of the open letter and to “rebut the erroneous conclusions [Rolling Stone] plans to draw from the open letter.”

“These communications are relevant to show that the unfounded criticisms of [Eramo] in the open letter are not NOW’s own beliefs, but rather a publicity stunt manufactured by Jackie’s counsel to undermine her efforts to obtain relevant discovery from Jackie,” the motion reads.

Speaking on the motion, NOW President Terry O’Neill stated that the subpoena, and its subsequent motion, were not appropriate, characterizing them as another installment in a “pattern of harassment” from Eramo and UVa.

“I think this is the administration of UVa engaging in a concerted effort to harass my organization simply because we are speaking out against rape culture on college campuses, including UVa,” O’Neill said.

It should be noted that UVa is not a party to Eramo’s legal proceedings, although the rector of the university and UVa’s Board of Visitors are listed as respondents to the suit, as they were subpoenaed by Rolling Stone in August. A spokesman for UVa could not be reached for comment on O’Neill’s claims.

An attorney for Jackie could not be reached for comment on the matter.
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Joan Foster

Radical Feminist Eramo is now getting the treatment she once advocated for others.
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http://www.dailyprogress.com/news/local/ex-uva-fraternity-members-lawsuit-against-rolling-stone-tossed/article_9bae256c-3d7c-11e6-8945-8b09ef0b6ef9.html

Ex-UVa fraternity members' lawsuit against Rolling Stone tossed

BY DEAN SEAL | Posted: Tuesday, June 28, 2016 9:25 pm

A federal judge in New York has tossed out one of three lawsuits facing Rolling Stone magazine in the fallout from their debunked 2014 article “A Rape on Campus.”

In a ruling filed Tuesday, Judge P. Kevin Castel granted a motion to dismiss the defamation lawsuit filed last July by three University of Virginia graduates and Phi Kappa Psi fraternity brothers who claimed they had suffered “vicious and hurtful attacks” from the discredited November 2014 article. Castel wrote that the article’s details are “too vague and remote” to support the plaintiff’s claims.

The story in question, written as an expose on the culture of sexual assault at elite college campuses, featured the account of first-year UVa student “Jackie,” who claimed she was brutally gang raped by seven men in an upstairs bedroom of the Phi Kappa Psi fraternity house during a 2012 party.

The article’s release prompted a firestorm of controversy, with marches held across campus and a suspension of Greek life for the remainder of the fall 2014 semester. During that maelstrom, the Phi Psi fraternity house was vandalized and its residents were threatened.

In the months that followed, the article fell apart under scrutiny, with an investigation from Charlottesville police turning up no evidence of Jackie’s claims and a subsequent review by Columbia University’s journalism school dubbing the article a “journalistic failure.” Rolling Stone retracted the story in April.

Although they were never identified in the article, fraternity members George Elias IV, Stephen Hadford and Ross Fowler filed a lawsuit in July 2015, saying the article “created a simple and direct way to match the alleged attackers” with the three 2013 graduates. For instance, Elias’ room at the fraternity house was “the mostly likely scene of the alleged crime,” as described by the article.

“Upon release of the article, family friends, acquaintances, coworkers and reporters easily matched [Elias] as one of the alleged attackers and, among other things, interrogated him, humiliated him and scolded him,” the lawsuit said, adding that Hadford and Fowler “suffered similar attacks.”

In his Tuesday ruling, Castel wrote that each of the three men failed to actually state a claim for defamation. Elias’ case, for example, was “based almost entirely on the fact that his bedroom was up a flight of stairs and did not require entry via an electronic keypad lock.”

“As noted, the article does not mention the presence or absence of a keypad lock. It merely locates a bedroom ‘up a staircase’ as the site of the purported rape,” Castel wrote. “The article contains no details that plausibly distinguishes Elias' bedroom from the several others on the second floor, even to those who knew extrinsic facts about the layout of the fraternity house.”

Fowler’s case, Castel wrote, was based on the fact that Fowler had been the rush chair during the 2010-11 academic year and active in the 2011-12 rush process. Because the article includes quotes allegedly made during the rape, such as “Don’t you want to be a brother?” and “We all had to do it, so you do, too,” Fowler argued that the article implied the rape was an initiation ritual and that “reasonable readers would conclude that Fowler was involved in Jackie's rape and other rapes by virtue of his prominent role in initiating new members.”

“Plaintiffs read far too much into the words of the article and rely on an interpretation that is at odds with the surrounding context created by the article,” Castel said in his ruling, calling the original article’s quotes “a type of perverse puffery … intended to encourage participation, not an actual precondition for membership.”

Castel similarly struck through Hadford’s claims, which “rely heavily on his practice of riding a bike through campus.” An excerpt from the article claimed Jackie had seen one of her assailants riding his bike on Grounds, leading to the suit’s claim that “friends, family, and acquaintances of Hadford would have made the connection that Hadford must have been the person who Jackie saw riding his bike on campus.”

“There is no basis from which Hadford could be distinguished from any other adult male riding his bike on the UVa campus,” Castel wrote.

Castel further ruled that statements made by Erdely during a Slate podcast, which had been cited in the lawsuit, appeared to be “speculation and hypothesis” based on Erdely’s phrasing.

He also noted that the three men’s claims were directed toward “a report about events that simply did not happen” and observed a contradictory nature of the claims, in that the plaintiffs “allege that the article’s references to attackers were ‘of and concerning’ them, even though they also allege that the attackers were apparently invented by ‘Jackie.’”

Finally, Castel wrote that the three men’s claim for negligent infliction of emotional distress had been voluntarily dismissed, as those claims were duplicative of their now-dismissed defamation claims.

Attorneys for both the plaintiffs and Rolling Stone could not be reached for comment on the matter.

Rolling Stone still faces two other lawsuits from the debunked article: a UVa administrator filed a $7.85 million defamation lawsuit last May, and the fraternity’s UVa chapter filed a $25 million suit the following November.
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http://chronicle.com/blogs/ticker/judge-tosses-ex-fraternity-members-defamation-suit-against-rolling-stone/112486

June 29, 2016 by Andrew Mytelka

comment

Judge Tosses Ex-Fraternity Members’ Defamation Suit Against ‘Rolling Stone’

A federal judge on Tuesday dismissed a defamation lawsuit against Rolling Stone magazine that had been brought by three former members of a fraternity at the University of Virginia, the Associated Press reported. The plaintiffs had sued the magazine over a 2014 article, since debunked, that described a gang rape at the campus’s Phi Kappa Psi fraternity house.

The accusation rocked the campus, but the police in Charlottesville, Va., said their investigation had found no evidence to corroborate the account of the woman who told Rolling Stone of the rape.

The magazine subsequently retracted the article and apologized for publishing it, amid harsh criticism of its author and her editors. An inquiry by Columbia University’s Graduate School of Journalism called the article a “journalistic failure that was avoidable.”

In his dismissal of the lawsuit, Judge P. Kevin Castel of the U.S. District Court in Manhattan ruled that the parts of the article alleged to be defamatory were billed as speculative observations, not factual statements, the AP reported. He also noted that none of the plaintiffs was mentioned by name or described in the article.

A lawyer for the plaintiffs, who have since graduated from UVa, told the AP they may appeal.

Even if they do not, Rolling Stone is still not free of litigation stemming from the article. An associate dean of students at UVa who was named in the article has sued the magazine and the article’s author for defamation and is seeking $7.5 million in damages. The UVa official, Nicole Eramo, says the article ruined her reputation — making her out to be “the personification of a heartless administration,” she once wrote — and caused her emotional distress.

“I saw my name dragged through the mud in the national press, and have received numerous abusive, vitriolic, and threatening emails, letters, and phone calls,” she wrote. Rolling Stone has denied it defamed her.
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https://www.scribd.com/doc/316996587/Rolling-Stone-lawsuit-dismissal#download
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http://www.washingtonexaminer.com/fraternity-brothers-lawsuit-over-rolling-stone-fake-rape-story-dismissed/article/2595195


Fraternity brothers' lawsuit over Rolling Stone fake rape story dismissed
By Ashe Schow (@AsheSchow) • 6/29/16 10:43 AM

A judge has dismissed a defamation lawsuit brought by three fraternity members who believed they were easily identifiable in Rolling Stone's debunked gang-rape article from 2014.

The article claimed seven members and pledges from the Phi Kappa Psi fraternity held a young woman down and gang-raped her as part of initiation. The story quickly unraveled when the man who allegedly orchestrated the whole event turned out not to exist and there was not even a party the night the rape allegedly took place.

In the wake of the article's debunking, three lawsuits were filed against Rolling Stone for defamation. One of those lawsuits came from three members of the Phi Kappa Psi fraternity who argued that family, friends and coworkers identified them as potential rapists from clues in the article.

One of the men, George Elias IV, lived in a bedroom at the top of the first flight of stairs in the fraternity house, which apparently was "the most likely scene of the alleged crime," according to the lawsuit. Elias said people he knew "interrogated him, humiliated him and scolded him." His co-plaintiffs, Ross Fowler and Stephen Hadford described similar situations at work and home.

The lawsuit also claims that the men had their names and hometowns listed online, which ensured their "names will forever be associated with the alleged gang rape." Even after the article was debunked, the men say they were "still being questioned often about the article's accusations."

U.S. District Judge P. Kevin Castel in Manhattan dismissed the lawsuit, writing the lawsuit didn't include facts, but rather speculation and hypothesis.

"Their defamation claims are directed toward a report about events that simply did not happen," Castel wrote in his dismissal. He also wrote that the men weren't identified by name or physically described in the article.

The three men plan to appeal.

Two other lawsuits — one from the Virginia chapter of Phi Kappa Psi and the other from a university dean who was named and shamed in the article — are still pending.
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http://www.dailygazette.com/news/2016/jun/29/u-va-fraternitys-defamation-lawsuit-against-rollin/

U-Va. fraternity's defamation lawsuit against Rolling Stone dismissed
T. Rees Shapiro/The Washington Post June 29, 2016

A federal judge in New York has dismissed a defamation lawsuit that three former members of the Phi Kappa Psi fraternity at the University of Virginia filed against Rolling Stone magazine, in which they alleged that a magazine article about a gang rape at the school implied they were involved in it.

The lawsuit centered around a sensational account of an alleged gang rape at the fraternity, which a U-Va. student named Jackie said happened in an upstairs bedroom during a party at Phi Psi during the fall semester of 2012. The article, published in late 2014, was later discredited, and Rolling Stone retracted the account.

Manhattan federal judge P. Kevin Castel dismissed the case because the three former members -- U-Va. Class of 2013 graduates George Elias IV, Stephen Hadford and Ross Fowler -- were not explicitly or implicitly identified in the 9,000-word account by journalist Sabrina Rubin Erdely.

The case's dismissal comes as two other lawsuits regarding the article continue forward in the courts, including one filed by an associate dean at U-Va. and the other a more general claim from the undergraduate members of the Phi Kappa Psi fraternity.

Castel ruled that the 2013 alumni did not have a claim against Rolling Stone because the article did not sufficiently identify or describe them.

Elias alleged that because he lived on the second floor of the Phi Psi house during the time of the alleged attack in 2012 that friends and acquaintances could have believed that he took part in the sexual assault Rolling Stone described.

But Castel wrote that "the article contains no details that plausibly distinguishes Elias's bedroom from the several others on the second floor, even to those who knew extrinsic facts about the layout of the fraternity house."

Hadford alleged that because he often rode his bike on campus in Charlottesville he could have been identified as one of the perpetrators, who is described at one point as bicycling on campus.

"These allegations are insufficient to plausibly state a defamation claim," Castel wrote. "The article contains no additional, identifying details concerning the individual who rode his bike around campus."

Fowler alleged that because he was "an avid swimmer" that readers could have possibly identified him as one of the attackers because the article described one of the assailants as a lifeguard at a campus pool. But Castel wrote in his opinion that such a claim was not plausible.

Lawyers representing the former Phi Psi members did not respond to a request for comment Wednesday, and a spokeswoman for Rolling Stone also did not respond to a request for comment.
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http://thefederalist.com/2016/07/01/why-rolling-stones-lawyers-arent-celebrating-the-defamation-lawsuits-dismissal/

Why Rolling Stone’s Lawyers Aren’t Celebrating The Defamation Lawsuit’s Dismissal
The dismissed Rolling Stone lawsuit over the false University of Virginia campus rape article is not the win headlines suggest.

By Leslie Loftis
July 1, 2016

Before the lie gets halfway around the world, the trending headlines about the dismissal of the defamation suit against Rolling Stone are oversimplified. Only one of three defamation cases against the magazine has been dismissed. The lawsuit in federal court in New York has been dismissed. The two cases in Virginia, one in state court and the other in federal court, remain. Also, the plaintiffs in the New York case will likely appeal.

A little recap: A young freelance writer, Sabrina Erdely, wanted to publish a story about campus rape culture. She contacted a woman who had allegedly experienced a brutal gang rape at a frat party at the University of Virginia. Erdely found an eager editor at Rolling Stone magazine and submitted a horrible story to them.

Disregarding basic journalism standards, ethics, and notions of oversight — that is not merely my opinion, but the findings of the Colombia Graduate School of Journalism review board created to figure out what went wrong after the story fell apart — Rolling Stone published the story, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA” in the fall of 2014.

The story quickly went viral. The dean of UVA, the Phi Kappa Psi fraternity, the individual members of the fraternity, and UVA itself became notorious examples of rape culture. Then a few actual journalists investigated and the story fell apart in a matter of weeks. It seems that the young woman—“Jackie,” as the story called her to protect her identity—had made up a story about a brutal gang rape in order to gain the protection and affection of a boy she liked.*

Rolling Stone retracted the story, but by then the damage was done for those falsely accused. Parties sued Rolling Stone, Erdely, and Wenner Media, which publishes Rolling Stone.

It Matters Where You Sue

I explained the possible defamation actions both before anyone announced intent to sue for defamation and after. (I also explained why they wouldn’t sue Jackie.) I mentioned the matter of jurisdiction. Virginia, the likeliest venue given the setting of the story, has defamation per se, or defamation in which the accusation is so awful courts assume damages. But Virginia also has a damages cap. I theorized that the parties might sue for honor more than money, but if they wanted to break the defendants financially, they’d have to sue elsewhere.

That is basically what happened. Dean Nicole Eramo sued in Virginia state court, and the defendants removed that case to federal court. The fraternity sued in Virginia state court. But three of the fraternity members, the ones who came to be known as the instigators of the rape that didn’t happen, sued in federal court in New York.

It is the federal case by the three individuals that got dismissed. That is also the case that was possibly the weakest, although none of them are weak. Unlike the dean and the fraternity, Erdely did not name the individuals in the article. Therefore, to succeed on a defamation claim, those young men would have to show that people realized the story was about them.
Do These Men Retain Their Good Names?

In New York — the case is in federal court but using New York state law — the standard is “of and concerning.” From the dismissal (internal citations omitted):

A plaintiff also must plausibly allege that ‘[t]he reading public acquainted with the parties [sic] and the subject’ would have understood the allegedly defamatory statement to be ‘of and concerning’ the plaintiff. ‘It is not necessary that the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.’ A reader must be able to discern that the statement refers to the plaintiff, even when the statement does not identify the plaintiff by name.

In the Internet age, when anyone can look up the members of the Virginia Alpha chapter of Phi Kappa Psi and wonder if they are the rapists —Hanna Rosin did just that with friends and wrote it up at Slate — the judge erred in dismissing the case. He assumed the plaintiffs would not be able to prove that people thought the story was “of and concerning” any of them because the rape never actually took place.

That is, Jackie did not describe one of them and just not name him. She wholly made up her attackers. The court essentially reasoned that since she did not base her fictional men on anyone real, no one could think the story was “of and concerning” any of the fraternity member plaintiffs.

First, that’s a bit of tough luck for any fraternity member who happens to resemble any of the guys Jackie invented, or who happened to live in the room where she set her tale. I think they have a decent shot at winning an appeal of the dismissal.

Second, the Southern District of New York’s analysis bodes poorly for Rolling Stone and Erdely’s chances of surviving the Virginia cases. Their research and fact-checking were so lacking that they published figments of someone’s imagination as news. There wasn’t even a kernel of truth that the story grew out of. And that is a court finding in an order for dismissal. In layman’s terms, the fabrication is so obvious that the court feels comfortable drawing that conclusion based upon the complaint, before evidence is presented at trial.

With findings like that, it shouldn’t come as a surprise in a few months’ time when Rolling Stone ends up losing like Gawker. The lawyers and owners of Rolling Stone aren’t likely celebrating today’s dismissal. Even if the dismissal doesn’t get overturned on appeal, this is still a case of win a battle but lose the war.

*In the two still-active defamation cases, Jackie has resisted turning over emails from the account she appears to have used to create the fictional rapist, Haven Monahan.

Leslie Loftis is a lawyer and senior contributor here at The Federalist. Find her on Twitter at @LeslieLoftisTX.
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Reported after the NY Federal lawsuit was dismissed, but still two lawsuits remain

July 2
WaPo

‘Our worst nightmare’: New legal filings detail reporting of Rolling Stone’s U-Va. gang rape story

Rolling Stone journalist Sabrina Rubin Erdely spent five months investigating a shocking claim of a gang rape at a University of Virginia fraternity, and the 9,000-word account of the brutal attack published online on Nov. 19, 2014, sent a tremor through the Charlottesville campus and beyond.

Then, on Dec. 5, at 1:54 a.m., Erdely sent an e-mail to the magazine’s top-tier editors, Will Dana and Sean Woods, with a simple subject line: “Our worst nightmare.”

The body of the message detailed how Erdely no longer trusted the primary source for the most striking anecdote in her article: a U-Va. junior named “Jackie,” who told Rolling Stone that she had been raped by seven men, while two others watched, during a date function at the Phi Kappa Psi fraternity house in 2012. She wrote that as questions arose about the tale, she tried to have Jackie help her verify the identity of her assailant, and “it spiraled into confusion.”

“By the time we ended our conversation, I felt nearly certain that she was not being truthful,” she wrote, noting that she had come to believe that “Jackie isn’t credible.” She ended her message by saying that the fraternity was planning to issue a statement denying that there was a party at their house the night of the purported assault. “We have to issue a retraction,” she wrote.

Erdely’s e-mail was a signal flare warning of turbulent months to come for the magazine, but, according to hundreds of pages of Erdely’s notes and other materials related to the case filed in court Friday, there were many other warnings — before the story published — that Jackie’s account was inconsistent.

The court documents, submitted as evidence in U-Va. Associate Dean Nicole Eramo’s $10 million defamation lawsuit against the magazine, reveal new details about the reporting that went into the story and show how Erdely deferred to Jackie’s wishes and account instead of digging deeper to verify the student’s claims.

The documents also show that aspects of Jackie’s account of her gang rape closely mirror details from prominent books about sexual assault survivors — including one that explores several gang rapes at fraternities — and the plotline of a “Law & Order: SVU” episode that ran about a year before Jackie first spoke to the reporter. According to Erdely’s notes, Jackie mentioned those books and the television show in her first interviews, and Erdely was warned that the nature of Jackie’s claims had changed over time.

Erdely did not respond to a request for comment Saturday regarding the documents; a spokesperson for Rolling Stone and attorneys representing Jackie also did not respond to requests for comment. Jackie’s full name is redacted from the court files.

In the court filings, Erdely acknowledges her missteps while reporting the article. She notes that as soon as she believed she could no longer trust Jackie, she alerted her editors.

“I cannot stress enough that at the time the Article was published, and until the early morning of December 5, I firmly believed that everything in it was true,” Erdely wrote, noting that she never intended “in any way to denigrate” Eramo. “It was never my intention to cause harm, and I feel nothing but sorrow and regret over the entire experience. If I had had any doubts prior to publication about the integrity of this story, or about Jackie’s credibility as a source, I would not have published it.”

Since that December 5 e-mail, the Columbia University journalism school and the Charlottesville Police Department issued extensive reports determining that the account Jackie gave to Rolling Stone was false. The magazine later retracted the story and apologized to readers. Last July, Dana resigned.

The magazine now faces lawsuits filed by undergraduate members of Phi Kappa Psi, as well as Eramo, who alleged in court documents that the story, titled “A Rape on Campus,” portrayed her as callous and indifferent to survivors of sexual assault.

Libby Locke, an attorney for Eramo, said the documents clearly show that the story was flawed and aimed to portray Eramo and U-Va. in a negative light, despite interviews that indicated sexual assault survivors had great praise for Eramo.

“Erdely’s reporting file demonstrates that there were numerous red flags that put Rolling Stone on notice that Jackie was not a credible source and that the gang rape story she told Rolling Stone was false,” Locke said, noting that Erdely knew Jackie’s story had changed over time, decided not to contact witnesses who could have dispelled aspects of the claims and had information that Eramo took Jackie to meet with police about her case. “But none of those facts stood in the way of Rolling Stone publishing a false and defamatory article, relying on a source who was not credible and painting Ms. Eramo as a callous and indifferent administrator.”

Among the trove of documents released Friday evening are Erdely’s 431 pages of notes that she used to build her story. The cache illustrates Erdely’s meticulous note-taking and the breadth of her reporting at U-Va.; Erdely interviewed Jackie at least six times, accumulating hours of recorded interviews.

At one point, she even talked her way into the Phi Kappa Psi fraternity house and ventured to the top floor — where Jackie said she had been raped — saying that she and other students acting as her guides needed to use a restroom. The notes show that Erdely did not identify herself as a reporter when confronted by members of the fraternity who saw the women in the house.

The notes also show that Erdely was aware of inconsistencies in Jackie’s account — including the number of men who allegedly assaulted her and the sex acts that took place during the attack — prior to publication.

Early on in her reporting, Erdely was adamant about the importance of naming the fraternity where Jackie said her assault took place in order to “take them to task” and hold them accountable, according to her interview notes. Yet the documents also show that Erdely made just minor efforts to persuade Jackie to provide Rolling Stone with the full name of the ringleader of her alleged rape.

[‘Catfishing’ over love interest might have spurred U-Va. gang-rape debacle]

“I don’t even want to get him involved in this,” Jackie told her. “I just kind of wanted him to never exist again.”

Erdely told her: “I’m going to have to make this phone call. Our lawyer is going to insist.”

Because Erdely didn’t locate or identify the men who allegedly assaulted Jackie, Erdely had to rely on a single point of view for the narrative: Jackie’s.

“Hers was the only eyewitness perspective I had,” Erdely wrote later in an internal Rolling Stone statement, which was never publicly released, acknowledging errors in her reporting. “After much internal debate we ultimately decided not to push her any farther, in order to protect her mental health, and honor her bravery for coming forward.”

In the original account, Jackie identified three friends who came to her aid on Sept. 28, 2012, a month into her freshman year, when she said she was attacked by a group of fraternity brothers after a date with a handsome upperclassman turned into a nightmare.

According to Erdely’s notes, she was unable to find the three friends, partly because Jackie told her she had a falling-out with them after the incident. But in interviews with The Washington Post in December 2014, the three friends said that the events portrayed in Rolling Stone vastly differed from what Jackie had told them occurred that night.

Erdely eventually acknowledged the error in the unreleased statement.

“In my focus on nailing down many other elusive facts, perhaps I stopped pushing as hard as I could for those names,” Erdely wrote.

A review of Erdely’s notes show that even mundane facts obtained from Jackie appeared to be false. At one point, Jackie told Erdely that her best friend freshman year was a woman named Kathryn Hendley and that they had known each other for “years.” In an interview with The Post, Hendley said that she had known Jackie only for three months before the alleged incident.

Jackie told Rolling Stone that during her attack, she was shoved through a glass table and that numerous fraternity brothers took turns raping her while she was on top of the shards of glass, Jackie told Erdely. She also told Erdely that her dress was soaked in blood as a result; her three friends said she appeared uninjured that night.

During a reporting trip to Charlottesville, Erdely asked Jackie to see the scars on her back.

“I was trying to look for them earlier, and they’re not distinct anymore,” Jackie told Erdely.

Erdely’s notes show that Jackie’s boyfriend quickly chimed in: “I haven’t really seen any marks on your back.”

Erdely also asked to see scars on her arm. Jackie rolled up bracelets around her wrists to show the reporter.

“In the dim lighting,” Erdely wrote. “I see nothing.”

The copious notes also describe the blueprint Erdely followed in her reporting. At first, she interviewed advocates and attorneys with experience in sexual assault cases. Her reporting eventually led her to settle on U-Va. after she learned that the school had not expelled any students for sexual assault in a number of years.

In July, she interviewed Emily Renda, a sexual assault survivor and 2014 U-Va. graduate who joined the faculty to work on programs to prevent gender-based violence. Renda eventually introduced Erdely to Jackie, who willingly described her allegations of the gang rape at Phi Kappa Psi.

Later that month, Renda wrote an email to Erdely cautioning the reporter about naming Phi Kappa Psi in print and expressed her concern that doing so might weaken the university’s ability to possibly sanction the fraternity.

In interviews with Erdely, Jackie said she met two other students who also had been gang-raped at Phi Kappa Psi. But Renda warned Erdely that no one from the university had met the two other women and that their accounts were uncorroborated. The notes show that the only person who apparently knew the other two alleged gang-rape survivors was Jackie, who repeatedly failed to produce contact information for them at Erdely’s request.

The notes show that after Erdely learned of Jackie’s allegations involving Phi Kappa Psi, she uncovered the story of Liz Seccuro, who was drugged and raped at the same fraternity house at U-Va. in the 1980s. Erdely mentioned the connection to Renda.

“It’s a little too much to believe, to be honest, that somehow it’s not part of the institution and that it accidentally happens twice in similar ways,” Renda told Erdely. “It begs you to suspend your disbelief.”

In her notes, Erdely describes the moment when Jackie tells her of the apparent connection. Jackie’s description of her assault strongly resembled aspects of Seccuro’s, including that she believed the fraternity had served her a spiked drink.

“Every hair on my arm is standing up,” Erdely wrote in her notes describing her reaction. “Seems like more than a coincidence.”

Jackie told Erdely that she learned of two U-Va. students who also were attacked at Phi Kappa Psi.

“Two other girls who were gang raped at the same fraternity?” Erdely asked.
“Yes,” Jackie said.
“Shocking,” Erdely said.“I don’t know the stats on gang rape but I can’t imagine it’s all that common? So the idea that three women were gang raped at the same fraternity seems like too much of a coincidence.”

Jackie responded: “It happens a lot more than people think.”

In other interviews with Erdely, Jackie said she was an avid fan of “Law & Order: SVU,” a network drama that specializes in law enforcement investigations into allegations of sexual assault.

Jackie told Erdely that at one point, her father suggested that they watch an episode together. Jackie said that the one he randomly picked happened to be about rape claims at a college campus. The episode, “Girl Dishonored,” originally aired in April 2013.

“It’s this girl who’s at a fraternity party and one guy takes her into a room and calls his friends in and like four of them gang rape her and no one believes her and they find out that this has been going on for a very long time,” Jackie told Erdely.

Jackie told Erdely that her father then asked if such attacks happened at her school.

“I was like, ‘Yes, Dad — this happens at U-Va. This happened to me,’ ” Jackie said.

During a dinner at a restaurant in Charlottesville, Erdely pressed Jackie to consider allowing Rolling Stone to name Phi Kappa Psi in the story.

“I feel like if we can get these guys, we should,” Erdely said. “We have a chance to make a difference. If their name was out there in public, they’d have no choice but to clean up their act.”

Throughout her reporting, Erdely wrote in her notes that she developed an opinion about the administration’s handling of Jackie’s claims, particularly the role played by Eramo.

“I’ve been hearing these women talking about her, they love her, she’s so warm and responsive to them and yet in each of their stories they don’t go to police,” Erdely wrote. “The perpetrators walk free. And yet they love her.”

Erdely noted later: “She’s preserving the status quo while giving the illusion that she’s helping the victims.”

Erdely even admitted to Jackie and her friend Alex Pinkleton that Eramo likely would not look good in the story.

“Is this going to make Dean Eramo look bad? It might. It might make her look bad,” Erdely told them.

Jackie responded: “I just don’t want her to lose her job over it. I would feel responsible for that.”

Erdely then said: “If it makes you feel better, I can make clear how much you guys all love her.”

In the weeks after the story’s publication, and as doubts began to mount about the veracity of Jackie’s account, Erdely and her editors began to prepare a lengthy response that ultimately was never released.

“Obviously, we regret any factual errors in any story,” the statement read. “But Rolling Stone believes the essential point of Jackie’s narrative is, in fact, true: a young woman suffered a horrific crime at a party, and a prestigious university reacted with indifference to her claim. This happens too often at college campuses all over America. Any mistakes we made were honest ones, trying hard to create a narrative and an investigation that would improve the prevention, investigation and prosecution of sexual violence. For that we would never apologize.”

In April 2015, the Columbia University journalism school issued a report detailing the flaws with the Rolling Stone article. The magazine published the Columbia report, accompanied by a note from the editor, Dana.

“We are officially retracting ‘A Rape on Campus,’ ” Dana wrote. “We would like to apologize to our readers and to all of those who were damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators and students.”

This story has been updated.
https://www.washingtonpost.com/news/grade-point/wp/2016/07/02/our-worst-nightmare-new-legal-filings-detail-reporting-of-rolling-stones-u-va-gang-rape-story/
Edited by Baldo, Jul 3 2016, 01:06 AM.
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http://www.newsplex.com/content/news/New-evidence-in-Rolling-Stone-Lawsuit-shows-Jackie-text-messages--385334731.html

New evidence in Rolling Stone Lawsuit shows "Jackie" text messages
By Tomas Harmon |
Posted: Sun 12:00 AM, Jul 03, 2016 |

CHARLOTTESVILLE, Va. (NEWSPLEX) -- New evidence is coming to light in the lawsuit filed by UVA Dean Nicole Eramo against Rolling Stone Magazine.

The evidence is part of a series of motions filed by Eramo and Rolling Stone Magazine, Author Sabrina Erdely and publisher Wenner Media.

On Friday in Federal Court, Rolling Stone asked for a summary judgment by a judge to have a defamation lawsuit against the magazine dropped.

At the same time, Eramo asked for a summary judgment by a judge on several affirmative defenses.

She wants the judge to rule that she was defamed by Rolling Stone and the defamation was done with malice.

Along with both requests, a set of agreed up facts were submitted. The submission included new evidence in the case, including text messages from "Jackie".

The text exchange is from October 2014, about a month before Rolling Stone published "A Rape on Campus."

In the exchange, "Jackie" tells a friend she will not give Rolling Stone reporter Sabrina Erdely the name of the man who lead the gang-rape against her.

The text reads in part, "...I have absolutely no obligation to give it to her so I'm not going to, she can find him on her own. I want him out of my life forever."

The conversation continues, with "Jackie" telling her friend she does not want to give the last name of her attacker.

Her friend responds that she communicated to Erdely what "Jackie" was saying.

The friend's text reads, "I just said I understand where she's coming from with needing to ask him for a comment, but it's not fair for you to have to give the name."

"Jackie" eventually tells her friend she is considering pulling out of the article entirely.

Her text reads, "Idk I'm going to talk to my parents and Dean Eramo and ask if they think I should pull out of the article entirely because I don't want anything to do with him ever again and all I want is the frat under investigation. All of this s*** happened two years ago and I keep trying to get over it and move on while simultaneously trying to make sure it doesn't keep happening but it's like she wants me to live it all over again and bring him back into the picture and talk to people I haven't spoken to in two years."

The evidence also includes texts "Jackie" sent to her friend in April of 2014, that included "Jackie's" depiction of her gang-rape.

"Jackie's" text read, "So I don't know if I can get up there and say how we crashed into a glass table and how the guy punched my {sic} after I bit his hand or how when {redacted} couldn't do it, they made him use a hanger and beer bottle because only you, Annie, Emily and my friends Katrina and Jenn know that stuff and my mom is going to be there so it's terrifying...but I am going to say that there were 9 of them and 1 of me and I couldn't do anything and afterwards I wished they had killed me and some pretty dark stuff..."

UVA Dean Eramo is suing Rolling Stone Magazine over the article they published, arguing her depiction in the article is false.

Rolling Stone retracted "A Rape on Campus" after Charlottesville Police determined the events depicted in the article never happened.
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