Today (9/20) at 9:30 a.m. PST lawyers from both parties in the Derrick Rose sexual assault lawsuit will enter the courtroom for the last time before the October 4th trial to argue 15 issues that could drastically impact what evidence will be allowed at trial and other trial related issues, including whether Doe’s identity will be revealed. [UPDATE – The known ruling on each issue are noted below]
In the past, and presumably at this hearing, the judge has handed out a “tentative ruling” to the parties the day of the hearing, listened to arguments on each issue, and then issued a formal written ruling within a week. Therefore, today the parties will know how the judge is planning to rule (subject to being persuaded to change his mind by the parties’ arguments), however the court order probably will not be released until later this week or early next.
The following is a preview of the six most important issues, including what each party is arguing and how each issue could impact the trial and settlement talks:
Issue #1: Whether Doe’s identity will be revealed at trial.
In June, the judge rejected Rose’s first attempt to force Doe to reveal her identity but noted that Rose could revisit the issue before trial. In his second attempt, Rose argues that:
“Doe cannot continue to have the best of both worlds—using a pseudonym to further her purposes while significantly prejudicing Mr. Rose’s ability to fully and fairly defend himself at trial.”
Rose claims that he is prejudiced by Doe’s pseudonym because he is unable to counter adverse publicity that may threaten his Adidas contract, and because third parties have not been able to contact him with potentially relevant information. Rose continues that because of Doe’s attempts to “extort” and “blackmail” him through this lawsuit, the news media has a strong interest in her identity “in order to assess the credibility of her allegations…” (On Friday, Rose filed an additional notice with the court claiming that Doe’s recent media interviews violated ethics rules and are further evidence that she should not be allowed to remain anonymous at trial).
Doe responds that she should be able to remain anonymous and that Rose “chose to unnecessarily attack [her] feminitity, morals and character in order to perpetuate incorrect myths about sexual assault, labeling her as the ‘sexual aggressor.’” She proposes that her name only be revealed to the jury or used in court with a restriction on any public reporting of her name or likeness, if at all.
- Rose’s Motion to Reveal Doe’s Identity
- Doe’s Response
- Rose’s Reply in Further Support of his Motion to Reveal Doe’s Identity
Potential Impact: From an overall case impact, this is probably the most important pretrial issue that the Judge will decide. If Rose wins, Doe’s true identity will be revealed to the juror’s and the media during trial. If he does not, she will be allowed to remain anonymous throughout the trial.
Doe recently stated during a teleconference I attended that she wanted to remain anonymous because, “I don’t want to be seen as a victim. I don’t feel safe.” Doe also told Lindsay Gibbs of Think Progress:
It’s very important for me because of my family. I want to keep this away from my mother and father mainly, and possibly the rest of my family members.
I come from a big family and although my parents are only Spanish speaking, anything can spark the interest of my nieces and nephews and brothers and sisters. It could come back to my mom, who right now is very ill and dealing with a lot of health issues. I wouldn’t want any stress on her, and I wouldn’t want anything affecting her or affecting my father.
They’re elderly and I’m a part-time caregiver for my mother, so it’s very important for me to do everything I can to make sure that my family’s needs are met and they’re still in good standing and have no stress or pressure placed on them.
If the judge rules that she cannot remain anonymous at trial, Doe’s settlement negotiation position will significantly weaken. In that scenario, her identity would not be revealed until trial, giving her a 7-10 day window to settle the case or have her identity appear on the front page of every tabloid.
UPDATE: The Court granted Rose’s motion and will require Doe to reveal her name at trial. The Court’s has not yet released an order.
Issue #2: Whether the judge will order sanctions for Doe’s Parents’ failure to be deposed.
Rose has filed a motion seeking sanctions for Plaintiff’s failure to make her parents available for depositions. Rose argues that because Doe has alleged a “traditional, religious” upbringing, he is entitled to depose her parents about her childhood.
A different federal court in California previously issued an order compelling their deposition, but their depositions were not completed (her Dad actually showed up to his deposition but left after an hour after Doe’s family member thought he looked sick), due to health issues. Doe filed a declaration stating that her mother is suffering from depression and unable to attend the deposition and that she hasn’t told her parents about the lawsuit and doesn’t want them to find out about it. In response, Rose argues that “such a statement raises the issue of a family history of depression, which would not demonstrate that Plaintiff’s alleged depressed mental state was not caused by Mr. Rose’s actions.” Rose lawyers are asking the court to throw out Doe’s claims related to emotional distress and to order Doe to pay monetary sanctions to Rose.
Potential Impact: Although unlikely, if the judge were to completely strike Doe’s emotional distress claims, it would significantly hamper Doe’s ability to recover compensatory damages (she is requesting $6 million for this type of damages). The more likely scenario is the judge prohibiting Doe from offering testimony related to her upbringing because Rose was unable to conduct discovery on the topic. Doe plans on testifying that Rose’s requests to perform sexual acts over Skype, to send nude pictures, and, ultimately, engage in group sex, were completely out of her character and comfort zone due to her formal upbringing. Thus, if she (and her expert witness who will opine on Doe’s emotional distress) is unable to testify about her religious upbringing, the jury may find her claim for emotional damages less convincing.
UPDATE: The Judge denied Rose’s request, noting that it was untimely and that Rose will suffer no prejudice by not being able to depose Doe’s parents. Read the Court’s order here.
Issue #3: Whether Doe will be able to introduce evidence that Rose did not take his SATs before attending The University of Memphis.
On her trial witness list, Doe included witnesses that would testify regarding the August 2009 University of Memphis Public NCAA Infractions Report and “allegations that Defendant Rose cheated on standardized college entrance examination.” Rose argues that the issue is far removed “in subject matter and time period” from any issue in this case and will unfairly prejudice Rose. Doe has not filed a response.
Potential Impact: I have spoken with a few other lawyers on this issue, and the consensus is that it would be very surprising if the judge allowed this type of evidence at trial. However, if the judge does let it in, Doe’s lawyers will likely use it in an attempt to undermine Rose’s credibility.
Issue #4: Whether Rose will be able to introduce photos of Doe partying in Las Vegas two weeks after the alleged sexual assault.
Rose plans on introducing 35 pictures of Doe partying in Vegas two weeks after the alleged sexual assault. Doe argues that these pictures are irrelevant to whether Defendants “conspired to and committed sexual batter” and that, if allowed to be shown to the jury, the pictures would unfairly prejudice the jury’s view of Doe. Rose responds that the photos are relevant because it shows that Doe “was not too ‘terribly ashamed and embarrassed’ by the events of August 26-27, 2013 to prevent her from partying with her friend in Las Vegas two weeks later.”
Potential Impact: For obvious reasons, the actual pictures have not been publicly released making it difficult to predict what kind of impact they could have on a jury. Although one of Doe’s expert will likely testify that sexual assault victims respond in different ways and this is not unusual behavior for a victim, if the pictures are allowed in, it is conceivable that the jury will be less inclined to believe Doe’s emotional damages testimony.
Issue #5: Whether Rose will be able to introduce evidence of Doe’s prior relationships and alleged sexual behavior.
Rose plans to introduce evidence that Doe previously “required surgery and a four-day hospital stay to remove her tubal pregnancy” that caused the breakup of a previous relationship and that Doe had sexual relationships with at least two other NBA players. Doe argues that these allegations have no relevance and improperly attempt to “assassinate” her character. Rose argues that Doe’s sexual behavior is relevant to her credibility and financial motivations for the lawsuit. Similarly, Rose filed another motion with the court yesterday, seeking approval from the Judge to introduce this and other information related to Doe’s relationships.
Potential Impact: If the judge allows this type of evidence to be introduced, expect a full-blown attack of Doe’s past during cross-examination. Expect Rose’s attorneys to use this information in an attempt to convince the jury that Doe only pursued her relationship with Rose (and this lawsuit) for the money.
Issue #6: Whether any reference to Doe being drugged on August 26-27, 2013 will be allowed at trial.
In the complaint, Doe alleges that “an unknown drug” was placed in Doe’s drink for the purpose of carrying out Defendants scheme to engage in group sex with Doe. Rose seeks to exclude any reference to possible date rape drugs, arguing that both experts have admitted that there is no evidence that Doe ingested drugs. Doe response accuses Rose’s attorneys of wanting to “take a mulligan” in an attempt to withhold their own expert because he testified that Doe was severely intoxicated the night she was allegedly assaulted by Defendants.
Potential Impact: If no testimony regarding date rape drugs is allowed at trial, Rose will not be forced to call his own toxicology expert to rebut the drugging allegations. This is important because, as mentioned above, Rose’s expert’s report contains a potentially harmful admission that Doe’s testimony is consistent with “advanced Alcohol Intoxication.”