Eramo v. Rolling Stone LLC
314 F.R.D. 205
W.D. Va.2016Background
- Rolling Stone published a November 2014 article reporting an alleged gang rape at UVA and describing interactions between the alleged victim (“Jackie”) and UVA Associate Dean Nicole Eramo. Defendants later acknowledged reporting failures and an independent review called the article a "journalistic failure."
- Eramo sued Rolling Stone, Sabrina Rubin Erdely, and Wenner Media for defamation, alleging the Article falsely portrayed her and damaged her reputation. Defendants deny negligence or actual malice.
- Eramo served a Rule 45 subpoena on non-party Jackie for communications with Erdely, Rolling Stone, Eramo/UVA, persons using the pseudonym "Haven Monahan," and other communications about the Article. Jackie refused production.
- Eramo moved to compel; the motion was transferred to the Western District of Virginia. At the time of the hearing, Eramo narrowed requested items and withdrew Demand No. 17.
- The court applied Rule 26(b)(1) (including proportionality), Rule 45 protections for non-parties, and considered (but limited) relevance of Rule 412 and Virginia statutory confidentiality claims in resolving the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 412 bars discovery of Jackie’s sexual-history-related materials | Rule 412 governs admissibility, not discovery; documents sought concern the alleged assault, not other sexual behavior | Rule 412 should limit inquiries into sexual conduct | Rule 412 governs admissibility only; discovery governed by Rule 26, but courts should guard privacy via protective orders and proportionality limits |
| Relevance and proportionality of communications between Jackie and defendants / Eramo/UVA | Highly relevant to defamation claims and defendants’ due-diligence defense; Eramo needs Jackie’s versions to corroborate defendants’ files | Requests are burdensome and invade privacy | Communications with defendants and Eramo/UVA (Demands 1,2,6,12,18) are discoverable; production must be confined and treated as Confidential under protective order |
| Scope of Demand re: pseudonym "Haven Monahan" (Demand 15) | All communications under or referencing pseudonym are relevant to what defendants could have learned | Broad scope is irrelevant to what was disclosed to defendants and burdensome | Limited production: only communications between "Haven Monahan" and Ryan Duffin, with any individual whose name Jackie had provided to defendants before publication, and Jackie’s communications with disclosed individuals mentioning the pseudonym |
| Patient-counselor privilege / Virginia confidentiality statute re: Jackie’s communications with UVA/Eramo (Demands 6 & 12) | Those communications are confidential under Va. Code §63.2-104.1 and thus privileged | No recognized testimonial privilege; defendants contend Eramo’s need outweighs confidentiality; voluntary disclosures may have waived any confidentiality | Court declines to recognize a statutory patient-counselor evidentiary privilege; even if such a privilege existed it may be waived by voluntary disclosure. Demands 6 and 12 not privileged for purposes of discovery |
Key Cases Cited
- Herbert v. Lando, 441 U.S. 153 (1979) (discovery rules construed broadly; relevance vs. admissibility distinction)
- Care-First of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003) (discovery is broad in scope and freely permitted)
- Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., 43 F.3d 922 (4th Cir. 1995) (district courts have broad discretion managing discovery)
- Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226 (M.D.N.C. 2010) (burden of persuasion rests with party resisting discovery)
- Desrosiers v. MAG Industrial Automation Sys., LLC, 675 F. Supp. 2d 598 (D. Md. 2009) (shifting burden once prima facie showing of relevance is made)
- United States v. Bolander, 722 F.3d 199 (4th Cir. 2013) (voluntary third-party disclosure can waive patient-psychotherapist privilege)
- Schaaf v. Smith-Kline Beecham Corp., 233 F.R.D. 451 (E.D.N.C. 2005) (extra consideration for non-party subpoena objections)
- Herchenroeder v. Johns Hopkins Univ. Applied Physics Lab., 171 F.R.D. 179 (D. Md. 1997) (courts may consider Rule 412 principles in discovery disputes involving sexual-assault victims)