Rolling Stone says records involving sexual assault at nationwide Phi Kappa Psi fraternities are paramount to its defamation fight with the Virginia Alpha Chapter over its since-retracted story of the gang rape of a University of Virginia student named "Jackie" that had purportedly happened at its campus frat house.
PKP has filed motions to quash subpoenas for documents regarding "claims, investigations, risk assessments, and disciplinary actions relating to incidents of sexual misconduct, alcohol abuse, and/or fraternity hazing" that involve PKP as a whole and other local chapters. Rolling Stone argues the documents are relevant because the national organization's brand and the local chapter's reputation are "inextricably intertwined."
"If other chapters of PKP nationwide have been disciplined and/or suspended in response to incidents of sexual assault and hazing, those incidents affect the value of the reputation that goes along with being recognized in the world as a 'Phi Kappa Psi brother' and, accordingly, are relevant to the damages claimed by VAC," writes attorney Robert Hall.
In its motion to quash, PKP argues that VAC is a separate entity from the national organization and any harm to its reputation and membership are specific to the local chapter. "In regards to PKP and the Other Chapters, the information requested is not relevant to the litigation nor is it likely to lead to admissible evidence," writes attorney Dirk McClanahan. "For example, assuming arguendo there was a hazing or sexual misconduct incident in Ames, Iowa, that incident would not prove or disprove the truth of an article that wrongly accused a party of a detailed and specific gang-rape allegation in Charlottesville, VA." Alternatively, the organization asked the court to designate any materials produced as in camera only, attorney's eyes only or confidential.
The magazine's lawyers pulled no punches in the responding memo filed March 27, indicating the fraternity chose not to speak up before the story ran.
"While numerous criticisms have been leveled at Rolling Stone, entirely missing from that discourse, until now, are the conscious decisions by VAC, guided by multiple lawyers, public relations experts, and national and alumni advisors to assume the risk of remaining largely silent and not sharing with Rolling Stone…the factual discrepancies in Jackie's story of which they were aware before and immediately after the Article was published," writes Hall. "For had they done so, the Article never would have been published."
Rolling Stone argues that for at least two months before its article was published, both the local chapter and national organization were "regularly advised" by university staff regarding the allegations.
"The initial failure by VAC and PKP to instantly and categorically deny the allegations is evidence that they believed, like multiple trained personnel at UVA, that these extreme allegations of sexual violence and wrongdoing at a VAC event were plausible," writes Hall.
Further, the magazine argues that the fraternity had "the knowledge, power, choice and wealth of opportunity to mitigate or avoid the harm it allegedly suffered from the Article," and the motivation for the lawsuit is money.
"The award sought would underwrite VAC's operations for some 160 years, or until approximately the year 2177," writes Hall. "This is a particularly egregious demand given that VAC did not lose any members post-publication."
The magazine also argues that PKP failed to show that the records sought warrant in camera only or attorney's eyes only protection. It does not object to a confidential designation under a previously stipulated protective order.
A hearing on the matter is set for Wednesday afternoon in Charlottesville Circuit Court. Trial is currently scheduled to begin Oct. 23.
Rolling Stone also is appealing a highly controversial ruling in the defamation suit brought by then-UVA associate dean Nicole Eramo. The court found story itself wasn't defamatory, but rather the magazine defamed the dean when it appended the original story with a retraction. Many in the legal industry and the press have warned that the ruling, if it stands, will likely chill media apologies.
PKP has not yet responded to a request for comment.