20160516 final for filing motion for leave to file ... ?· plaintiff’s supplemental brief in...

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  • Exhibit 1

    Case 3:15-cv-00023-GEC Document 83-1 Filed 05/16/16 Page 1 of 51 Pageid#: 1717

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    IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

    Charlottesville Division

    NICOLE P. ERAMO

    Plaintiff

    v.

    ROLLING STONE LLC, SABRINA RUBIN ERDELY, and WENNER MEDIA LLC,

    Defendants.

    ) ) ) ) ) ) ) ) ) ) ) )

    Case No. 3:15-cv-00023-GEC

    PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF HER MOTION FOR AN

    ORDER TO SHOW CAUSE AND TO COMPEL COMPLIANCE WITH RULE 45 SUBPOENA AND COURT ORDER

    Movant Nicole Eramo, Plaintiff in the case of Eramo v. Rolling Stone LLC, et al., No.

    3:15-cv-00023-GEC, hereby submits this Supplemental Brief in Support of her Motion for an

    Order to Show Cause and to Compel Compliance with Rule 45 Subpoena and Court Order of

    January 25, 2016 in order to notify this Court of relevant and conclusive additional evidence

    obtained on April 23, 2016 to the instant motion. This new evidence received after Plaintiff had

    filed her Reply Brief to this motion shows that nonparty Respondent Jackie (1) created the

    pseudonym or alias Haven Monahan; (2) communicated with Ryan Duffin and other

    individuals previously disclosed by Jackie to Rolling Stone about, and while posing as, the

    fictitious Haven Monahan; (3) has or had possession, custody, or control over such

    communications; and (4) has not been forthcoming with Plaintiff and this Court in asserting that

    she has produced all responsive documents in her possession to Plaintiff in response to the Rule

    45 Subpoena and this Courts Order without at least providing an explanation for why she does

    Case 3:15-cv-00023-GEC Document 83-1 Filed 05/16/16 Page 2 of 51 Pageid#: 1718

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    not have possession of responsive documents. This new evidence, in addition to the compelling

    justifications set forth by Plaintiff in her Memorandum of Law in Support of her Motion for an

    Order to Show Cause and to Compel Compliance with Rule 45 Subpoena and Court Order of

    January 25, 2016 [Dkt. 64] and her Reply Brief in Support of her Motion for an Order to Show

    Cause and to Compel Compliance with Rule 45 Subpoena and Court Order of January 25, 2016

    [Dkt. 78] (Reply Brief), leads to only one logical conclusion: that Jackie is Haven Monahan

    and has either not produced all responsive documents to Plaintiffs Rule 45 Subpoena in her

    possession and therefore is not in compliance with this Courts January 25, 2016 Order or owes

    Plaintiff and this Court an explanation for why she is no longer in possession of responsive

    documents.

    PROCEDURAL AND FACTUAL BACKGROUND

    Jackie was the central figure and main source for an article published in Rolling Stone

    magazine in November 2014 entitled, A Rape on Campus: A Brutal Assault and Struggle for

    Justice at UVA. Jackie claimed that she was sexually assaulted by someone named Haven

    Monahan. On October 3, 2012, Haven Monahan sent an email to third-party Ryan Duffin,

    with who Haven and Jackie had also been communicating via text message.

    On February 16, 2016, Jackie produced some documents in response to Plaintiffs Rule

    45 Subpoena after this Court had ordered her to do so. (See Court Order, Eramo v. Rolling Stone

    LLC, No. 3:15-MC-00011 (Jan. 25, 2016) (Order) [Dkt. 35]; See Mem. Op., No. 3:15-mc-

    00011 (Jan. 25, 2016) [Dkt. 34]). After waiting a month for additional documents, counsel for

    Plaintiff wrote to Jackies counsel, identifying Haven Monahan documents that are known to

    exist but that Jackie has failed to produce, explaining that the Courts order requires the

    production of those documents, and citing evidence showing that Jackie was the author of these

    Case 3:15-cv-00023-GEC Document 83-1 Filed 05/16/16 Page 3 of 51 Pageid#: 1719

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    communications and thus is, or at one time had been, in possession of responsive documents.

    (See Letter from Andrew Phillips to Rebecca Anzidei and Phil OBeirne (Mar. 16, 2016) (Mar.

    16, 2016 Letter) (Attached hereto as Ex. A)). Plaintiffs counsel demanded that Jackie produce

    documents responsive to Demand No. 15 as ordered by this Court. Plaintiffs counsel further

    demanded that if Jackie claimed to no longer be in possession of documents known to have been

    in her custody, then her counsel needed to provide an explanation of the bases for the claim that

    Jackie was no longer in possession of the documents, such as an explanation of the

    circumstances of any deletion of the documents, and a description of the efforts undertaken to

    search for and recover the documents. (See id.) Additionally, Plaintiffs counsel requested that if

    Jackies counsel contends that she was not the author of any of the Haven Monahan

    communications sought in Demand No. 15 despite the overwhelming evidence that she was

    then her counsel needed to provide some explanation of the basis for that belief. (See id.).

    On March 17, 2016, counsel for Jackie responded to Plaintiffs counsels letter asserting

    simply that Jackie had produced all documents in her possession, custody, or control without any

    explanation. (See Letter from Rebecca Anzidei to Andrew Phillips (Mar. 17, 2016) (Mar. 17,

    2016 Letter) (Attached hereto as Ex. B)). Counsel for Plaintiff again requested a formal written

    response describing the circumstances for withholding responsive documents and an explanation

    for any claim that responsive documents are no longer in Jackies possession on March 17, 2016

    and on March 21, 2016 (See Emails Between Andrew Phillips and Rebecca Anzidei (Mar. 17,

    2016, 11:31 PM EDT, Mar. 21, 2016, 4:25 PM EDT, and Mar. 22, 2016, 7:51 PM EDT) (March

    17-22, 2016 Emails) (Attached hereto as Ex. C)). Jackies counsel once again responded

    simply that she had provided all responsive documents to the Subpoena in her possession without

    further explanation. (See March 17-22, 2016 Emails). The instant motion followed.

    Case 3:15-cv-00023-GEC Document 83-1 Filed 05/16/16 Page 4 of 51 Pageid#: 1720

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    Jackie filed her Opposition to Plaintiffs motion on April 12, 2016, in which she once

    again stated and certified to this Court that she had produced all responsive documents to

    Plaintiffs Rule 45 Subpoena and this Courts Order and without in any way addressing the

    merits of the relevant question; whether Jackie authored the Haven Monahan communications

    and if so, why she is unable to produce them. (See Non-party Resp.s Oppn to Mot. for Order to

    Show Cause and to Compel Compliance with Rule 45 Subpoena and Court Order (Jackies

    Oppn Brief) [Dkt. 77]). On April 19, 2016, Plaintiff timely filed her Reply Brief to Nonparty

    Respondent Jackies Opposition to Plaintiffs Motion for an Order to Show Cause and to

    Compel Compliance with the Rule 45 Subpoena and Court Order of January 25, 2016. (See Pl.s

    Reply Brief to Non-party Resp.s Oppn to Mot. for Order to Show Cause and to Compel

    Compliance with Rule 45 Subpoena and Court Order (Reply Brief) [Dkt. 78]). Plaintiffs

    Reply Brief noted, among other things, that Jackies counsel had failed to offer any explanation

    for their failure to produce the email Jackie authored using the email account

    haven.monahan@yahoo.com, despite the fact that producing the email should require no more

    than simply accessing the account using the username and password Jackie used to create it. See

    id. at 1-4.

    On March 30, 2016, in order to obtain additional and conclusive evidence that Jackie is

    currently or was at one time in possession of communications from Haven Monahan, Plaintiff

    issued a subpoena to third party Yahoo! Inc. (Yahoo) requesting information associated with

    the email account, haven.monahan@yahoo.com. (See March 30, 2016 Yahoo Subpoena

    (Attached hereto as Ex. D)). On April 23, 2016, four days after Plaintiff filed her Reply Brief,

    Plaintiff received Yahoos production in response to the subpoena. (See April 20, 2016 Yahoo

    Subpoena Response (Yahoo Response) (Attached hereto as Ex. E)). Yahoos response

    Case 3:15-cv-00023-GEC Document 83-1 Filed 05/16/16 Page 5 of 51 Pageid#: 1721

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    included information regarding the email account haven.monahan@yahoo.com, including IP

    addresses from which the email was accessed and dates and times on which the email was

    accessed from those IP addresses. See id.

    After reviewing the information in Yahoos response, Plaintiff sent a letter to Jackies

    counsel on May 2, 2016 which included the documents produced by Yahoo and yet another

    demand to comply with this Courts Order and produce the Haven Monahan documents in

    Jackies possession. (See Letter from Andrew Phillips to Rebecca Anzidei and Phil OBeirne

    (May 2, 2016) (Attached hereto as Ex. F)). Jackies counsel responded on May 6, 2016, once

    again stating that they had produced the documents responsive to the Courts January 25, 2016,

    Order and Opinion, that [Jackie] has in her possession, custody or control and that Respondent

    is not withholding any responsive, non-privileged documents. (See Letter from Rebecca

    Anzidei to Andrew Phillips (May 6, 2016) (Attached hereto as Ex. G)). Plaintiffs Motion for

    Leave to file this Supplemental Brief followed.

    ADDITIONAL EVIDENCE THAT PROVES THAT JACKIE IS HAVEN MONAHAN

    Yahoos response to

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