Judge: Jackie Coakley not covered by patient-counselor privilege in defamation suit
College Fix Staff •January 28, 2016
Jackie Coakley can’t hide her secrets any longer.
The student at the heart of Rolling Stone‘s discredited gang-rape story has been ordered by a federal judge to turn over her communications with the magazine and author Sabrina Rubin Erdely, and even her counseling communications with the University of Virginia, though they won’t be made public.
UVA Associate Dean of Students Nicole Eramo is suing Rolling Stone for $7.5 million, claiming its portrayal of her and her interactions with Coakley are defamatory. Judge Glen Conrad earlier signaled he would force Coakley, who is not a party in the case, to turn over some communications that are relevant to Eramo’s claims against the magazine.
(Though Coakley is still identified only as “Jackie” in the litigation and mainstream media coverage, her full identity has been public for months and her status as a gang-rape victim is in serious doubt, so The College Fix has decided to fully identify her going forward.)
Conrad wrote in his memorandum opinion that Coakley’s claimed privilege for being an alleged rape victim doesn’t protect her because federal restrictions only apply to the admissibility of sexual-behavior evidence at trial, not their relevance in discovery, which is what Eramo is seeking.
It is “reasonable and proportionate” for Eramo to obtain Coakley’s communications with Rolling Stone, Erdely and “Eramo/UVA” as evidence of defamation and negligence by the magazine, especially because it has already turned over its communications with Coakley, Conrad wrote.
Perhaps the most notable part of Conrad’s ruling is his dismissal of Coakley’s claim that her counseling sessions with Eramo and Emily Renda (another UVA employee) are protected by “patient-counselor privilege” – a legally dubious claim that nonetheless became a PR nightmare for the University of Oregon in a countersuit against an alleged rape victim suing that school.
Virginia law on the privacy of sexual-assault victims provides an explicit exemption for court orders, Conrad wrote:
The court is unaware of any authority that holds that [the relevant law] creates a patient-counselor privilege, and the court declines to do so in this case. In addition, the statutory language permits disclosure of protected information in response to a court mandate, which provides further support for the court’s finding that the statute does not establish an evidentiary privilege. Even assuming that the court could find that this statute establishes a patient-counselor privilege, it appears that Jackie may have waived such privilege by voluntarily disclosing the contents of her communications with Eramo and UVA to defendants.
Communications between Coakley’s pseudonym “Haven Monahan” and her friend Ryan Duffin, as well as Monahan’s communications with anyone else Coakley gave Rolling Stone before its article was published, must be turned over:
One of the main issues in the defamation action is defendants’ due diligence in relying on Jackie as a source for the Article. Plaintiff argues that defendants could have interviewed Ryan Duffin and others about Jackie’s story and her credibility as a witness, but failed to do so. As such, these communications are relevant and proportionate as they will help resolve the question of what the defendants could have discovered about Jackie’s story and credibility if they had interviewed Jackie’s friends.
Only Coakley’s communications about the Rolling Stone article before her last public comment to The Washington Post Dec. 5, and not the “details of her alleged assault,” must be turned over, Conrad ruled:
The crux of the dispute in the defamation action is defendants’ portrayal of Eramo and Jackie’s communications with Eramo/UVA . The specific, graphic details about what may or may not have occurred on the night of September 28, 2012 have no bearing on these issues.