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EphBlog Appears in Safety Dance Court Documents

Latest filings in Safety Dance feature the College’s attempt to unmask John Doe, justified, in part, by citing EphBlog. Should we be horrified or proud?

The Memo in Support of Motion for Reconsideration provides the College’s argument.

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1) What do readers think of the College’s attempt to unmask John Doe? Seems sleazy to me!

2) What do attorneys (especially MRL ’91 and WW) think? Is this a negotiating ploy?

Here is part of what Doe’s attorney Stacey Elin Rossi wrote in that e-mail:

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Harsh but fair? Susan Smith has not come off looking good so far . . .

By the way, why was Rossi sending Smith e-mails like this last summer? John Doe’s complaint is with Williams refusal to grant him his degree. How was Smith still a part of the conversation in August?

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The other (unnamed) blog is Academic Wonderland, maintained by former Williams faculty member KC Johnson. Should we be proud or embarrassed to be called out by Williams’s counsel in this context? Should we be upset not to be mentioned by name? Also, any lawyers care to chime on about our use of a photo from the Internet Archive? Do we really need anyone’s “permission?”

The Attachment 2 to Memo Reconsideration is a screenshot of EphBlog. I believe that this is the second time that EphBlog has appeared in a court document. Who among our loyal readers remembers the first?

John Doe’s attorney argues against in the Reply Memo in Opposition to Motion for Reconsideration.

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Did College attorneys Daryl Lapp and Elizabeth Kelly really violate an (important?) rule of civil procedure? I have my doubts. They seem like serious players, as one would expect of the attorneys hired by Williams. (Harvard hires few idiots.) Comments welcome!

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Seems to be that Rossi has the better argument here. Am I missing something?

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#1 Comment By KC Johnson On December 25, 2016 @ 2:59 pm

Williams’ attempt to use EphBlog and my writing to advance its argument seems to smack of desperation. The documents used in our original posts were public documents. Williams’ attack on the use of the photo from the Internet Archive is also curious–especially since (it appears) the college never sent a notice directly to you not to use the item.

Rossi’s last statement, however, isn’t accurate–there are a couple of cases (Cornell and Wesleyan) in which courts have refused to allow anonymous court filings. The vast majority have allowed it–including, in the case that’s most directly relevant here, a case at Lynn University (FL) in which the accuser was named in the complaint. (In the Lynn case, unlike the Williams case, the plaintiff’s lawyer never filed an amended complaint that eliminated the accuser’s name.)

#2 Comment By We Are All John Doe On January 3, 2017 @ 7:06 am

Apparently, Rossi originally intended on including Smith as a named defendant. The motion to strike gives more details.

#3 Comment By anon On January 3, 2017 @ 12:05 pm

Haven’t seen any mention of this on your blog (from Williams’ Opposition to John Doe’s Motion for Preliminary Injunction, at p. 3):

“The hearing on sanctions was held on December 1, 2016, at which it was noted that Doe had been found responsible for nonconsensual sex during his freshman year, for which he had been suspended two semesters; he had been found responsible for significant academic misconduct during his sophomore year, the sanctions for which were failure of the course at issue and two years of disciplinary probation; and he had been warned that any further conduct violations almost certainly would result in his expulsion. See Sanction Letter (Kelly Decl. Exh. C) at 1. As a result of Doe’s history of conduct violations and the seriousness of the new finding of nonconsensual sex, Doe was expelled. Id.”

#4 Comment By Pmeh Aehs On January 3, 2017 @ 12:33 pm

What does this have to do with anything regarding the erroneous finding this time around? Nothing.

#5 Comment By We Are All John Doe On January 3, 2017 @ 12:48 pm

Here’s what seems obvious to me:

1) JD did not really rape anyone in his freshman year. The procedures at the time were even more egregious than they are today. The college had a single investigator system that had essentially no procedural protections for the accused students. Also, do you really think that two semesters suspension would be an appropriate response by the college if there was really a rape?

2) Since Smith and JD had a long term relationship going on three years, it is extremely likely that she was well aware of the previous case. What better way than to assure she could accomplish her goal of ruining his chance of earning his degree then to accuse him of what she did. She knew that such an accusation would be the nail in his coffin because of the history.

3) Like Pmeh says, the past has no bearing on the case and how the hearing panel had no evidence to base its decision on finding JD guilty.

4) anon seems to have an agenda. Perhaps anon works for the college?

#6 Comment By Whitney Wilson ’90 On January 3, 2017 @ 1:22 pm

@WAAJD,

It may be obvious to you, but I’m not certain how essentially anyone on this blog can know for certain that “JD did not really rape anyone in his freshman year.” Regardless of the procedures in place at the time, it is a least possible that he was “guilty” (not in a criminal sense, of course) of non-consensual sex” (is that defined differently than rape?).

The earlier panel’s finding is relevant, because if part of JD’s defense was his statement that he didn’t do it, the panel may wish to evaluate that denial in the context of his previous statements/actions.

I’m not saying that its not possible that JD was railroaded this time, but it sounds like the panel had reasons to be skeptical of his story.

#7 Comment By Pmeh Aehs On January 3, 2017 @ 1:48 pm

Whitney,

“The earlier panel’s finding is relevant, because if part of JD’s defense was his statement that he didn’t do it, the panel may wish to evaluate that denial in the context of his previous statements/actions.

I’m not saying that its not possible that JD was railroaded this time, but it sounds like the panel had reasons to be skeptical of his story.”

This has been covered here in this blog already but this comment makes it seem that you missed it. The panel has a two stage process. Prior history does not come in to play at the deliberation phase of the hearing panel. It only comes in at the sanctioning phase.

#8 Comment By We Are All John Doe On January 3, 2017 @ 1:54 pm

JD doesn’t have a “story.” If you read the investigator’s report, you will see that he has no clue what Smith is talking about. He simply denies any incident of non-consensual sex with Smith. On the other hand, Smith has a dubious and conflicting story and gives no evidence to support it.

Chhhooooo chhooooooo down the tracks…..

#9 Comment By Frederic Thys ’80 On January 3, 2017 @ 2:22 pm

Rossi is wrong when she says no college in any Title IX lawsuit has ever opposed a student’s request to proceed under a pseudonym. Brandeis did: http://www.wbur.org/news/2015/05/11/brandeis-lawsuit-misconduct

#10 Comment By Pmeh Aehs On January 3, 2017 @ 2:30 pm

Not only that, Pmeh, but Smith doesn’t even have anything to say that describes she was forced to have sex against her consent. All Smith’s story really amounts to is that they had sex one night when she was tired, not in the mood, and wasn’t lubed up enough.

The best synopsis so far starts at page 28 in Rossi’s response to the motion to dismiss. Talk about evisceration.

This case needs to get in front of a jury of reasonable people with common sense instead of academics who split hairs and argue about how many angels dance on the head of a pin.

#11 Comment By anon On January 3, 2017 @ 3:44 pm

There is no such thing as Rule 408 of the Federal Rules of Civil Procedure.

#12 Comment By Pmeh Aehs On January 3, 2017 @ 4:01 pm

Federal Rule of Evidence

#13 Comment By anon On January 3, 2017 @ 4:29 pm

Pmeh Aehs, Correct. Why is it that John Doe’s attorney does not know that?

#14 Comment By Pmeh Aehs On January 3, 2017 @ 5:02 pm

Just looks like a typo or scriveners error to me.

#15 Comment By anon On January 3, 2017 @ 6:13 pm

I doubt it. She references it multiple times throughout the opposition (or “reply” as she incorrectly calls it).

#16 Comment By Lionel Hutz On January 3, 2017 @ 9:31 pm

1. Rule 408 is a Rule of Evidence, not a Rule of Civil Procedure.

2. Rule 408 is extremely narrow. It principally deals with the admissibility — or, rather, inadmissibility — of settlement offers to prove or disprove liability (e.g., evidence at trial).

4. Notwithstanding what some lawyers mistakenly believe, Rule 408 does not shield “settlement communications” from production for other purposes.

5. Just because a lawyer stamps “Subject to Rule 408” on a communication does not make it so.

6. Williams’s lawyers did not violate Rule 408 by providing the Court with a copy of the purported “settlement communication” as part of this motion practice.

#17 Comment By We Are All John Doe On January 4, 2017 @ 6:12 am

The motion to strike explains why the offering is made by Williams to show liability for their claims and does not fall into that “other purpose category.”

#18 Comment By Atty On January 4, 2017 @ 7:37 am

The motion to strike is wrong, and Rule 408 doesn’t apply. Showing an extortionate motive is simply not the same thing as showing liability on the underlying claims, and saying it doesn’t make it so.

#19 Comment By Pmeh Aehs On January 4, 2017 @ 8:00 am

The rule sounds very strange to me, atty, because the “other purpose” should not be to defame and scandalize. It just sounds like a loophole of infinite proportions.

#20 Comment By We Are All John Doe On January 4, 2017 @ 8:16 am

Also looks to me like Williams’ attorneys violated the ethical rule against knowingly making false statements of material fact or law to the court. As DDF alluded, these attorneys would know what is extortion or not. This wasn’t.

#21 Comment By Pmeh Aehs On January 4, 2017 @ 3:34 pm

The Lynn University case is very interesting and very relevant. Doe named his accuser. The Court declined to refer to this non-party by name but did not order Plaintiff to follow suit. 7 months after the initial complaint, the Parents of Mary Roe filed non-party motions for protective order. The court denied the request and the Court did not require Plaintiff to use a pseudonym for the accuser who remains named throughout Plaintiff’s pleadings.