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Lawyers in Rolling Stone suit fight to keep evidence out of trial

Police investigation, OCR report among disputed evidence

<p>Eramo is suing over her depiction in the now-debunked Rolling&nbsp;Stone article, "A Rape On Campus." She&nbsp;claims she was falsely depicted in the article as indifferent towards Jackie’s case.&nbsp;</p>

Eramo is suing over her depiction in the now-debunked Rolling Stone article, "A Rape On Campus." She claims she was falsely depicted in the article as indifferent towards Jackie’s case. 

Former Associate Dean Nicole Eramo’s lawsuit against Rolling Stone, Wenner Media Inc. and Sabrina Rubin Erdely saw new developments as lawyers from both sides filed motions on Sept. 16 to prevent the jury from seeing certain pieces of evidence.

These motions in limine are meant to limit or prevent certain pieces of evidence from being used in trial.

Rolling Stone’s lawyers filed 12 motions seeking to exclude from the trial evidence involving communications with readers following the publishing of the “A Rape On Campus” article and testimonies or exhibits on Eramo’s employment, healthcare, reputation and personal life.

“Any evidence of how Eramo was impacted or affected by the article subsequent to the date on which she was allegedly defamed is irrelevant to the question of defendants’ liability, runs the risk of prolonging the liability phase, confusing the jury and would be highly prejudicial if introduced for any reason other than damages,” the defendants’ first motion in limine said.

Two of the motions in limine dealt with aspects Eramo’s personal life and reputation: her battle with breast cancer and readers’ letters sent to Rolling Stone following the article’s publication. While the defendants argued in court documents that Eramo’s health and reputation could not have been harmed as a result of the article, the plaintiff’s lawyers argued unpublished readers’ letters demonstrated how readers believed the allegations against Eramo.

Eramo’s lawyers also argued her health suffered as a result of the stress from the article.

“Ms. Eramo’s belief that the stress from the article inhibited her ability to recover from her surgery is highly probative of the mental suffering and pain she endured,” Eramo’s lawyers said in court documents. “It shows that — in addition to the normal stress that a healthy person would have experienced as the result of the article — the defendants caused Ms. Eramo an additional kind of mental suffering and pain: worry that the article was impeding her recovery and attacking her health.”

Another motion in limine aimed to prevent the Charlottesville Police Department’s investigation in court with the reasoning that it does not pertain to the matter of Eramo’s defamation, but rather whether the alleged gang rape had happened or not.

The investigation did not find evidence to substantiate Jackie’s alleged gang rape.

“The CPD investigation, press release and press conference have no relevance to the issue of actual malice,” the defendants’ motion in limine said.

Rolling Stone’s lawyers also called for the Columbia School of Journalism’s review of the article to be prevented from court so the jury would not be influenced by the fact-checking nature of the report. Eramo’s lawyers argued in their opposition although Rolling Stone openly published the review both online and in print and admitted its journalistic malpractices, actual malice is still evident.

“Because defendants’ statements in the report are so plainly probative of defendants’ knowledge at the time of publication, of defendants’ actual malice in publishing the article, and of the truth or falsity of the claims in the article, defendants bear a heavy burden of demonstrating that the clear relevance of their own admissions is outweighed by other considerations,” Eramo’s lawyers said in court documents.

Three of the defendants’ motions in limine aimed to prevent the testimonies and opinions provided by Jackie’s three friends mentioned in the article, Kathryn Hendley, Alex Stock and Ryan Duffin, as well as Sara Surface, Alex Pinkleton, Laurie Casteen and Emily Renda.

“The testimony from the three friends about inconsistencies in Jackie’s story and her penchant for untruthfulness — and the fact that she invented her assailant, ‘Haven Monahan’ out of whole cloth — is in fact relevant to actual malice because it is all information that Erdely could have and should have learned if she had not avoided contacting these obvious sources prior to publication,” Eramo’s lawyers said in court documents.

The defendants also want to throw out an exhibit in the Newseum featuring the “A Rape On Campus” article as evidence by arguing it would allow the jury members to make snap judgments on the quality of reporting based on the exhibit rather than making judgments themselves.

Eramo’s lawyers, however, argued the exhibit serves as an example of how Eramo’s character has been defamed in multiple institutions.

“Ms. Eramo intends to offer this evidence as evidence of harm Ms. Eramo has suffered: as a direct and proximate result of Defendants’ defamatory statements, Ms. Eramo’s name has been enshrined in a museum and further associated with false and defamatory allegations,” the plaintiff’s lawyers said in court documents.

Two of the pieces of evidence in question had to do with Erdely’s articles published prior to “A Rape on Campus” and her email interactions with Jackie and further investigations after Dec. 5, when the retraction was published on Rolling Stone’s website. While the defendants argued failure to investigate does not mean actual malice, the plaintiffs argued Erdely purposefully avoided further investigation in order to give more backbone to her story.

“This evidence is more than sufficient for the jury to infer that Erdely avoided contacting the three friends because she knew that they would contradict Jackie’s inherently improbable story and would deny having said the comically callous statements attributed to them,” Eramo’s lawyers said in court documents.

A final motion in limine Eramo’s lawyers argued to keep in the trial is a “Law & Order” episode they believed inspired Jackie’s gang rape story. They claimed Erdely chose to ignore the episode in order to avoid evidence derailing her story.

“Evidence relating to the episode is highly probative of the issue of actual malice and shows a clear example of one of the ways in which Erdely purposefully avoided investigating and discovering evidence that the sole source for the article’s depiction of Ms. Eramo’s interactions with Jackie was not credible,” Eramo’s lawyers said in court documents.

Rolling Stone’s lawyers filed oppositions to motions in limine posed by the plaintiffs as well.

Eramo’s lawyers proposed throwing out the Office of Civil Rights review, to which Rolling Stone’s lawyers argued the OCR report proved the University had mishandled sexual assault cases.

“Consistent with the Article, the OCR Report concluded that U.Va. mishandled Jackie and Stacy’s cases, finding no evidence that U.Va. was ‘evaluating steps necessary to protect safety of the broader University community,’” Rolling Stone’s lawyers said in court documents. “U.Va. never challenged the OCR Report findings.”

U.S. District Court Judge Glen Conrad has yet to rule on these motions, and the trial is set to begin Oct. 16.

The attorneys for both Eramo and Rolling Stone, Wenner Media Inc. and Erdely did not respond for comment.