FAVALAWYER BLOG

ON THE BLUNDER OF THE ROLLING STONE

Investigative journalism gets the hook.

In the December 2014 issue of  Rolling Stone (released in November), writer Sabrina Rubin Erdely published a devastating article detailing an alleged gang rape concurring at The University of Virginia chapter of the  Phi Kappa Psi fraternity.  Following the publishing of the article, the UVA campus was rocked with negative reaction, resulting in the short term suspension of  all fraternities on campus. There were cries of condemnation of Greek life by professors and students alike.  Demonstrations occurred in front of the Phi Kappa Psi house, and vandalization followed, with cinder blocks and bottles being thrown through house windows.   Things got so heated and dangerous that several members of the fraternity left the house.

However, cracks soon appeared in the reporting of the story, and ultimately, on December 5, 2014 Rolling Stone issued an apology, citing “discrepancies” in the circumstances of the Story.

On April 5, 2015 the Columbia School of Journalism published a highly critical review of the story and the methodology of Rolling Stone in researching and publishing the story in question.

Now, The University of Virginia chapter of the  Phi Kappa Psi fraternity, has announced its intention of filing a lawsuit against Rolling Stone for its “reckless” reporting.

SO IS A LIBEL SUIT COMING?

By UVA?  NO. (UVA is a governmental entity, and governmental entities cannot sue for defamation.)

By The University of Virginia chapter of the  Phi Kappa Psi fraternity, or individual members?   Hmmm, well, maybe, possibly.

The Libel law standard explains why the is answer on UVA is definitive, while the answer on the fraternity and/or its members  is, well, lawyerish.

Here is the law in Virginia as it pertains to Libel:

(1) a publication about the plaintiff,

(2) of an actionable statement,

(3) with the requisite intent.

So what is an actionable statement?  The courts have defined an “actionable statement” to be a statement that is both false and defamatory , causing damage to the person about whom the statement is made.

The next level of analysis is whether  the fraternity is an identifiable plaintiff, or is it simply a (too) large group?

If the group is too large, suit would be unlikely.

Example: I can’t sue if someone tells a lawyer joke, but if the joke identifies me by name,  is published, with the intent to defame me….well, maybe I could.

Another rub-truth is a complete defense in a libel action, which raises a fascinating angle:   What if the story was factually inaccurate as published, but contained some core truth in terms of what was described.   Might a trial reopen the issue of  fraternity life on campus? Are there stories that could move the needle closer to truth than it exists now? If sued, one would expect Rolling Stone to explore all defenses available to it. I am not suggesting that there are skeletons that would be unearthed, but clearly this is an issue that Phi Kappa Psi will want to explore when considering suit.  Lawsuit discovery can be expansive, and fraternity life at UVA will go back under the microscope if suit is filed.

Finally, plaintiffs in a libel case need to prove damages, which can include lost reputation, loss of income/ employablity, etc.   This will be a challenge as well.   Fraternity members could argue that they are known on campus as members, and thus have been harmed.   But all in all, not an easy mountain to climb.

In the end, these are tough questions for Phi Kappa Psi  and their lawyers to consider and evaluate.  If a suit is indeed filed, they and the public need to be prepared for more information on this issue to be revealed, either at trial, if it gets that far, or through possible press leaks during discovery.

And in the end, maybe that is not such a bad thing, regardless of where the evidence leads.

Contact us at Favaloro Law Offices if you wish to discuss this issue further, or leave a comment below.  We are a full service litigation firm concentrating in medical malpractice and personal injury law.

 

FAVALAWYER BLOG – Are Your Old Emails Part of Your Case?

There has been a lot of buzz around the emails of Hillary Clinton

the last couple of weeks, with the political issue of whether Ms. Clinton should turn over the server that housed her private emails, to recover emails that were deleted.  But what about the legal issues involving emails?

We will look at two of them:

1) Are  old personal emails are discoverable (able to be reviewed by the other side in a lawsuit);

and

2)  Can deleted emails be retrieved?

WAIT… other people might see my old emails ?

 

Yup, maybe.  The rules of evidence provide that any material (“material” clearly now includes email and other social media) that is reasonably calculated to lead to discoverable evidence, must be produced and exchanged between lawyers when requested.  This means that if you have sent an email to a friend discussing or addressing the facts of your case (for instance, a car accident, medical treatment in an injury case, communications to third parties in a divorce case, etc.)  those emails may have to be turned over to the other side when requested in discovery.  Of course, the question of whether the emails in question are discoverable and material may be disputed, whereby a judge will need to resolve whether they need to be produced.   But the lesson is clear:  If you write the email, and hit send, be aware that someone other than the sender may ultimately see it, and that someone might be a judge or juror.  Electronically Stored Information (ESI) has a long shelf life, so here is a good rule of thumb:  If you are involved, or believe that you may be involved in a lawsuit, don’t discuss any part of it electronically, be it via email or social media. To paraphrase, loose fingers sink lawsuits.

No Problem, my emails were deleted!

 

Two things:

First, if the emails were intentionally deleted because you wanted them gone so you didn’t have to produce them, that’s a big no-no.  You could get fined and sanctioned by the court, and your lawyer, if he or she were involved in the deletion scheme , could get fined and disbarred.  So if this is an issue facing you now, and even if you feel that you will die a thousand deaths if anyone sees those emails,  Do. Not. Delete.   The legal term for this spoliation, and it could completely torpedo your case. Work with your lawyer and figure out how to best deal with the situation.

Secondly, if the emails were accidentally deleted, or lost through a computer crash, the court could order recovery measures from the email server in question.  The technology is there to do this, and it will be interesting to see if that comes to fruition in the Hillary Clinton email saga.

So from a legal perspective, every email that you send could reappear in places that you never expected.  You should also realize that the recipient of your email might also be involved in a lawsuit that could implicate your emails, and potentially you.

So here is my lawyerly take in all of this:  Communicate via email only those things that you are willing to say out loud at Thanksgiving Dinner, with all of your family and close friends present.  Business emails are for business, and personal emails should be G-rated. If really personal things need to be communicated, or if you need to vent, communicate it in person (preferably),  or on the phone, or even go old school and send a letter! If you follow these rules, you will sleep much better should your emails reappear in a lawsuit or legal dispute context. Every day on twitter people are apologizing for writing intemperate things, and  it probably is going to get worse. Do a Google News search on “inappropriate emails”,  and you will be shocked at the extent and regularity of this problem.

Electronic communication can’t be beat when it comes to speed and multi-person communication, but speed on the keyboard, like on the road, can be dangerous.  Be careful out there!

If you have any questions about email and social media discovery, or wish to talk about ways to protect your communications in the future, please contact us at Favaloro Law Offices.