Authors Note: This story was originally published on September 13th and has been updated on October 3rd to reflect the Court’s pretrial rulings and other evidence that has come to light. If text is
crossed out, that means the judge has ordered that it cannot be used during trial.
There is cutthroat litigation and then there is the Derrick Rose sexual assault lawsuit. With a new court filings excoriating the opposition filed nearly every day for the last month, to say things have gotten nasty would be quite the understatement.
The way that each side characterizes the other’s case is illuminating. Compare Rose’s lawyers’ description of Doe’s lawsuit — “desperate [attempt] seeking to tarnish Mr. Rose’s public image in an effort to extract a large extortionate payment from him” — to Doe’s lawyers description of Rose’s legal strategy — “unnecessar[y] attack on Doe’s femininity, morals and character in order to perpetuate incorrect myths about sexual assault, labeling her as the ‘sexual aggressor.’”
The lawsuit, originally filed on August 26, 2015, accuses Rose and co-Defendants Randall Hampton and Ryan Allen of drugging Plaintiff, breaking into her Los Angeles apartment, and taking turns raping Doe while she came in and out of consciousness and seeks $21.5 million in damages. The three defendants admit to having intercourse with Doe, but deny that it was not consensual and that she was drugged or heavily intoxicated.
The optics of the Rose’s defense have often been cringe-worthy. For example, his lawyers have twice asked the court to force Jane Doe to reveal her identity, arguing that it is only “fair” that Doe expose her identity and bear her share of the media scrutiny. The first time around Rose argued that Doe has no “legitimate fear of shame, humiliation, or embarrassment” because “photos from [Doe’s] Instagram account  are sexual in nature.” The judge did not take kindly to that argument, stating “such rhetoric has no place in this Court.”
Undeterred, Rose’s attorneys again asked the court to force Doe to reveal her identity at trial, in part arguing that Doe doesn’t deserve anonymity because she is older than Rose. The second motion is still pending. (I refer to Rose’s accuser as Jane Doe throughout this article).
[UPDATE: The Judge ruled that Jane Doe must use her real name beginning the first day of trial. While he recognized that Jane Doe may be prejudiced by this ruling, he found that Rose would be prejudiced more — mainly because the jury could prejudge Doe as a victim — if Doe was allowed to remain anonymous at trial. Read the judge’s full order here.]
When the lawyers aren’t attacking the opposing party, they are cannibalizing each other. In a recent filing, Rose’s lawyer accused Doe’s lawyer of “getting high” with Doe. He accused another one of Doe’s lawyers of drafting an invitation for Doe to conduct pretrial media interviews in “amateurish prose,” as a publicity stunt inconsistent with her efforts of maintaining anonymity during trial.
Doe’s lawyer accused co-defendant’s counsel of going on the radio – without identifying that represented parties in the lawsuit – and falsely stating that Doe had a child with another athlete (she doesn’t) and that she “was looking for it.”
[UPDATE: Last week the judge told the opposing lawyers that “I am really getting fed up with you.”]
As you will see, these examples are just the tip of the iceberg. This trial primer seeks to set out exactly what parties are arguing and what evidence they have to support their claims with the hope that you can put yourself in the juror’s shoes. While there are three defendants in the lawsuit, this article mainly focuses on Rose. The other two Defendants, Rose’s friends Randall Hampton and Ryan Allen, have mostly piggybacked on Rose’s legal defense and have been less of Doe’s lawyers focus throughout. Where possible and relevant, PDFs of the court filings are linked. Enjoy.
The Parties’ Differing Views of the Facts
The facts recited by the parties wildly differ, so instead of inserting editorial bias, the following is each side’s version of the facts – pulled entirely from the court documents – broken up into four segments of time:
The Start of Jane Doe and Derrick Rose’s Relationship
Jane Doe’s version: Doe and Rose began dating in 2011. Over the next year, the two texted about once a month and formed an intimate relationship with one another. They met about ten times in 2012 and about five times in 2013. When Rose was injured during the 2011-12 basketball season, he spent the majority of his time in L.A. where he continued his romantic relationship with Doe.
During this time, Rose asked Doe to engage in sexual acts that she was not comfortable with, including buying Doe a computer and asking her to masturbate over Skype and asking Doe if she knew any strippers and whether she would invite one to have a threesome. This made Doe uncomfortable since she was brought up in a traditional and religious household where woman should have sex only with their spouse. Doe’s refusal to be more adventure upset Rose and made Doe feel like she was too prude.
In May 2013, Rose attempted to have sex with Doe and Doe’s friend. Doe refused. In June 2013, Rose requested that Doe engage in sexual relations with co-defendant Randall Hampton and his girlfriend. Doe refused again.
Rose’s version: Doe met Rose in October 2011, liked him a lot and wanted to marry him. They saw each other six times in 2011, ten times in 2012, and twice in 2013 prior to the night of August 26th. Doe and Rose had consensual intercourse twice in 2011 and eight times in 2012.
The Evening of August 26, 2013 at Rose’s Beverly Hills Home
Jane Doe’s version: Rose invited Doe and her friend to his Beverly Hills home on August 26, 2013. Doe drank vodka while waiting for the car Rose sent for her and then drank red wine provided by the car service on the way to Rose’s residence. Co-Defendants Hampton and Allen greeted Doe and her friend and gave them tequila. Doe became so inebriated that she sat by the fire pit and began picking up burning gemstones, burning her hand. Doe began experiencing blackouts and was in and out of consciousness.
At one point, co-Defendant Allen asked Doe’s friend to take her clothes off and when she refused, Allen got angry and told her to leave. Doe’s friend did not want to leave by herself because she knew Doe was severely intoxicated and suspected that the three Defendants would try to rape her. Doe’s friend convinced Doe to get in a cab and go home.
Rose’s version: Rose invited Doe to his Beverly Hills home on August 26, 2013. At the time, he had not had intercourse with Doe for five months. That day, Rose and Doe exchanged numerous text messages, including this one sent from Doe to Rose:
(12:00 PM) “Babe I need that pink belt I sent you the picture off and I have a chick she a massage therapist in the valley can u send driver to pick me and then ill go get her from work. I told her I would take care of her.”
Doe also texted Rose pictures of herself wearing a sex belt and wanted him to think that she bought it when in reality, she already owned it. This and other texts are some of the many lies Doe told Rose. Rose sent a car to take Doe and her friend to Rose’s house. Doe drank an unspecified amount of vodka while waiting for the driver and drank red wine in the car on the way to Rose’s house around 9 PM.
Doe spent about three hours at Rose’s house with her friend, Rose, and co-Defendants Hampton and Allen. Doe drank small sips of tequila from the bottle, which was passed around the group. Doe was not drugged. Rose and Hampton had consensual sexual interaction with Doe at the Beverly Hills home. Doe and her friend left Rose’s home after midnight.
The Morning of August 27, 2013 at Doe’s Apartment
Doe’s version: When she got back to her apartment, Doe needed the assistance of the taxi driver to help her up the front stairs of the apartment complex. Once inside, she threw up in the bathroom and could barely make it to bed, lying down with her clothes and shoes still on.
The three Defendants, knowing that Doe was severely intoxicated, drove from Rose’s house to Doe’s apartment, found a door of the apartment complex that was propped open and proceeded to Doe’s apartment, which was routinely unlocked. Defendants entered the apartment and began to rape Doe while she was incapacitated.
Doe remembers very little during this time but does recall all three Defendants in her bedroom, Rose penetrating her as she tried to roll off the bed, Allen running in and out with a tube in his hand, Allen pinning her down when she was trying to get up, and Hampton pulling up his shorts.
Doe’s roommate arrived home to find a couple of men sitting on the couch. When she went to her bedroom, a man approached her and tried to force himself into her bedroom. She pointed him towards the bathroom, went into her bedroom, locked the door and turned the fan on.
Rose’s version: After Doe left Rose’s house, she texted him from the taxi that she still wanted to see him that night:
(1:40 AM) “No she was not anyways fuck the bitch .. I left my belt and shit n yo bathroom. And u need to come to me right now.”
(1:56 AM) “So I want you here too”
The three Defendants came to Doe’s apartment where she greeted them and let them into her apartment. Plaintiff engaged in sexual intercourse with all three Defendants: Rose first, Allen second, and Hampton third. Doe doesn’t recall if she said no or asked them to stop. Doe’s roommate, who had to use a key to enter the building and apartment, was in the bedroom next door and did not hear noises or screams that night.
Doe’s version: Doe uncharacteristically slept through her alarm the next day and when she awoke on her bed, her dress around was her neck and lubricant was spread all over her legs. She felt sick and a “rug-burn” sensation between her legs. Doe noticed condoms around her bed. She felt terribly ashamed and kept thinking this was “not supposed to happen.” Doe rushed to get ready and go to work, where she arrived late.
Doe was too ashamed and embarrassed to contact the police or a lawyer immediately after the incident. She became paranoid that Defendants were monitoring her cell phone. She was never the same after the rape and it showed in her everyday life and eventually caused her to lose her job.
Rose’s version: Doe woke up at 7:00 AM and saw a used condom on the floor and an unused condom on the bed. Doe texted Rose to ask for money for the sex belt and cab fare from the previous night. Doe’s roommate felt that Doe acted normal the next morning.
Doe drove to work, arriving an hour late. Doe’s co-worker felt that she acted normal, “didn’t seem battered”, and didn’t mention she had been raped. While at work, Plaintiff again texted Rose for reimbursement of the belt and taxi. Doe did not go to the doctor that morning, get tested for STDs, or get a rape kit.
Over the next few days, Doe sent texts to Rose and became increasingly frustrated when he did not respond or give her money. Doe’s final text to Rose stated:
(9/3/13) “Stop the games, this is not a joke… I hope u serious this time.”
Doe texted co-Defendant Allen on September 8 and 9, 2013, falsely claiming that she had to pay for the belt, a $200 credit card bill, and that she had to miss work. About two weeks after the alleged rape, Doe partied with a friend in Las Vegas.
She waited two years to file a civil lawsuit. Two months after she filed the civil lawsuit, she went to the police, who did not file charges.
[UPDATE: According to a letter from LAPD detective Nadine Hernandez, there is a “current and open criminal investigation” into the incident.]
The jury trial is scheduled to begin on October 4th. For various reasons, civil trials are sometimes pushed back to a later date, however, that is almost certain not to happen in this case because the presiding judge has consistently kept to his schedule and denied the parties’ requests to move court scheduled dates.
If the case goes to trial, Rose could miss the first three preseason games.
The exact length of the trial is unknown but the parties have estimated that it will take 8-10+ business days. Rose will have to attend trial, so (assuming no settlement) he will likely miss at least the Knicks’ first three preseason games (the Knicks second preseason game is on a Saturday so in theory he might be able to play in that game).
[UPDATE: The judge has ordered that each side will only receive 16 hours to conduct direct and cross examination. There are some unknown factors at play still but this means that the trial will likely last less than the predicted eight business days.]
It is important to note that this is a civil, and not criminal, trial. Therefore, Rose faces only monetary damages and not criminal penalties such as jail time. Also, the burden of proof that Doe’s attorneys must meet (preponderance of the evidence or more than 50% likely) is lower than that of a criminal case (beyond a reasonable doubt).
Before we jump into what evidence each party will provide at trial, it is important to understand exactly what Doe must prove (and Rose must disprove). Doe alleges nine different causes of action against Rose (see details of all nine on pages 5-9 here). Many of the claims are related and can be boiled down to two categories: Sexual Battery (Rape) and Trespass.
Sexual Battery: Under the California sexual battery law, Doe must show that Defendants (1) intended to cause harmful contact; (2) Doe did not consent; and (3) Doe was harmed by Defendants’ conduct. Only number (2) is in dispute, thus the question becomes:
Whether Doe consented to sexual intercourse with Defendants in the early morning of August 27, 2013, and if not, whether Defendants reasonably believed that she did.
Whether Doe consented is a factual question for the jury to decide. (A full list of what the parties are planning on introducing into evidence is listed below.) Even if Doe consented to sexual intercourse with Rose earlier in the evening, the Defendants could still be liable if she is able show that consent was withdrawn prior to sexual intercourse at Doe’s house or if consent did not extend to all of the Defendants. Even if Doe did not subjectively consent to intercourse with Rose, he is not liable if the jury finds that he reasonably believed that she did consent.
Trespass: Immediately prior to the alleged sexual assault, Doe alleges that Defendants broke into her apartment complex and apartment. The only disputed aspect of her trespass claim is whether Doe gave “permission for the entry” into her apartment. If Doe can convince the jury that Defendants entry to her apartment was unauthorized, her claim for trespass will succeed.
Jane Doe’s Evidence
As the Plaintiff, Doe will have the first opportunity to present her case to the jury. Here are the highlights of what her lawyers will present to the jury:
Doe’s fact witnesses who will testify at trial:
- Jane Doe: Will testify about her version of the facts, as stated in detail above.
- Jessica “Kendra” Goff: Doe’s friend who attended Rose’s Beverly Hills rental home with her on August 26, 2013. She will testify about what took place at Rose’s house that evening including: (1) that she did not want to leave Doe behind when she was leaving because she feared Defendants would take advantage of her; and, (2) she was able to take Doe from Rose’s house even though Defendants wanted to keep her there.
- Tommie McCaster: Doe’s coworker who will testify about interactions with Doe at work the day after the alleged sexual assault including:
(1) listening in on a call between Doe and Defendant Allen; (2) what Doe told him about the sexual assault; and, (3) details of requests by Rose to engage in group sex. [UPDATE: McCaster can testify regarding that Doe told him she was raped the day after the incident but only to refute Rose’s evidence to the contrary]
Rose’s toxicology expert: The symptoms Doe describes are that of “advanced Alcoholic Intoxication.”
- Kasturi Anderson: Anderson’s relationship to Doe and/or Rose is unknown. She will testify to overhearing a phone conversation between Doe and Allen less than two weeks after the incident where Allen stated “he was not aware that [Doe] was drugged that night”, “he thought she wanted it”, and that NBA players have group sex all of the time, and that “girls in LA ask them to have group sex” because they are NBA players.
- Claudia Carleo: Doe’s roommate who came home in the early morning of August 27, 2013. Excerpts of her deposition will be read into the record including: (1) that her bedroom was not next to Doe’s; (2) that a man came “running” towards her bedroom door and “tried to come in” but she shut the door and locked it; (3) that the apartment complex and their apartment were routinely left unlocked; (4) details of the sexual assault told to her by Doe; (5)
that Doe “had a blanket that had blood on it”; and, (6) that Doe “never really said anything about money, but she did say those guys raped her…”
- Marcella Carleo: Doe’s other roommate (and Claudia Carleo’s sister) who was not home during the early hours of August 27, 2013. Excerpts of her deposition will be read into the record about
what Doe told her about the alleged rapeand how Doe changed after the alleged rape.
- B.J. Armstrong: Former NBA player and Rose’s agent. Armstrong will testify about Rose’s net worth.
- Unknown witnesses to testify regarding allegations that Rose had another person sit for his SAT exam while in high school.
- Cross-examination of Derrick Rose: Doe’s attorney will vigorously cross-examine Rose about his version of the events with the hopes of poking holes in his story. Rose was deposed earlier this year and he will be bound to the testimony given during his deposition. The full transcript of the deposition has not been released but here are few excerpts:
On Rose’s hope that Doe would agree to group sex:
Rose: If it would have turned into [a foursome], yes, would have been cool, but—
Q: It would have been cool?
Rose: Yeah. But it wasn’t. I mean, when she came – I asked her to come over. By that time, Randall was already doing his own thing.
Q: And so if – if Plaintiff said to you in a text message, “So you want me to f*** your friend?” And you responded, “Man, he just like my brother. That won’t affect our relationship.”
Rose testified that he wanted to have a threesome with Doe in June 2013 and she refused:
Rose: Oh, I wanted her to bring a friend for a threesome.
Q: And did she
Rose: No. I mean she brought her yeah.
Q: And did you try to have a threesome with her?
Rose: I don’t think it played out that way. No, I didn’t try.
Q: [Doe] wouldn’t consent to any sort of sexual activity with [her friend]; isn’t that right?
Rose testified that Doe never agreed to group sex in the past:
Q: Have you ever had a threesome or foursome with [Doe]?
Q: All of the other times that you pushed that issue with her, she refused, isn’t that right?
Rose testified that none of the text messages show that Doe consented to sexual activity on August 26, 2013:
Q: All right. Is there – within what you just reviewed in those text messages, is there anything within them that would lead you to believe that [Doe] wanted to have sex with you and the other two defendants on August 26, 2013?
Rose testified that the reason the Defendants went to Doe’s house early in the morning on August 27, 2013 was because “we men.”
Q: Did either Mr. Hampton or Mr. Allen tell you why they wanted to go to Plaintiff’s home on the night in question?
Rose: No. No.
Q: So they just said, ‘Hey, it’s the middle of the night. Let’s go over to Plaintiff’s house’ and they never gave you a reason why they wanted to go over there?’
Rose: No, but we men. You can assume.
Q: I’m sorry?
Rose: I said we men. You can assume. Like we leaving to go over to someone’s house at 1:00, there’s nothing to talk about.
Rose testified that Doe had more than two drinks at his Beverly Hills home:
Q: Do you have a belief that [Doe] drank more than two that night?
Doe’s expert witnesses that will testify at trial:
- Elena Konstat: Ms Konstat is a Los Angeles based clinical psychologist that will testify that Doe suffered a traumatic event and that her symptoms are consisted with someone who suffered a sexual assault. She will also testify that Doe’s actions following the sexual assault were consistent with many sexual assault victims. The Court has ruled that Dr. Konstat cannot testify regarding the truth of Doe’s claims.
- Okorie Okorocha: Mr. Okorocha is an attorney and drug and alcohol forensic toxicology expert. He will testify regarding: (1) Doe’s intoxicated state the night on August 26-27, 2013 and the variety of drugs that can be used as “date rape” drugs; (2) that there is no evidence that Doe was drugged on August 26-27, 2013 but that doesn’t rule out that drugs were used; and, (3) Doe was highly intoxicated and likely to have no idea what was going on. Read Mr. Okorcha’s full report here.
Doe’s key documents:
- Texts from Rose to Doe asking to join in foursome:
- Texts from Rose to Doe breaking off the relationship:
- Texts from Rose to Doe showing that she never sent him sexual videos despite repeated requests:
- Texts from Doe to Rose a week after the alleged rape saying that she is “so disturbed by this and its weighing heavy on me”:
- Text messages between Doe and Allen from September 9, 2013 stating, “I hope that never happens to any of your loved ones.”
- Call and text logs from Allen and Rose to Doe showing that Doe was sleeping from 2:05 am to 2:53 am on August 27, 2013:
Phone records of Allen’s phone that contain numbers shown in Internet advertisements of prostitutes. Video of Doe watching Lady Gaga “Till it Happens to You” Oscars Performance: Video and pictures of Doe’s PTSD symptoms including acne and pulled eyelashes.
Derrick Rose’s Evidence
After Doe presents her evidence to the jury, Rose will have the opportunity to present his side of the story and to rebut Doe’s allegations:
Rose’s fact witnesses who will testify at trial:
- Derrick Rose: Will testify about his version of the facts, as stated in detail above.
- Co-defendants Ryan Allen and Randall Hampton: They will testify regarding: (1) the consensual sexual interaction between Doe and them at Rose’s Beverly Hills home; (2) Doe’s desire to get together later that night for more consensual sexual interaction; (3) how Doe opened the apartment complex and apartment doors for the three defendants; (4) how Doe explained that she wanted to have sex with each man one at a time while using a dildo on herself; and, (5) text messages exchanged between them and Doe.
- In his deposition, Allen testified that Doe “didn’t seem drunk to me” and that everyone shared a “small bottle” that they did not finish “so it wasn’t many shots poured.” He also testified that Doe gave him a lap dance “with her dress raised”, that Doe “tried to get me to take my clothes off before I got in the pool but I told her no,” and that he and Doe went into a room and “made out” while at Rose’s home on August 26, 2013.
- In his deposition, Hampton testified that he only believed Doe drank two shots of tequila the entire night and that she did not seem incapacitated to him. He testified that he saw Rose and Doe having sex and that he and Doe had sex while at Rose’s Beverly Hills home on August 26, 2013.
- Gabriela Chavez: Acquaintance of Doe. She will testify about Doe’s conduct and demeanor after August 27, 2013 including about how she partied with Doe in Las Vegas in September 2013. [UPDATE: Chavez filed a signed declaration stating that, among other things, she bluntly asked Doe if she was raped a few weeks after the incident and Doe responded “no.”]
Text from Doe to Rose while she was at her apartment on the night of the alleged sexual assault: “u need to come to me right now.”
- Claudia Carleo: Doe’s roommate who came home in the early morning of August 27, 2013. Excerpts of her deposition will be read into the record including: (1) that she saw no damage to the apartment complex door or her apartment door; (2) that residents had to walk down the hallway to let visitors in; (3) she heard no “noises” or “screaming” or anyone yelling “don’t” or “stop”; and, (4) that Doe was “happy and smiling” the morning of August 27, 2013 before she left for work.
- Kenya LaVergne: Co-worker and roommate of Doe after the August 27, 2013 incident. She will testify about her belief that Doe’s allegations against Rose are false and financially motivated. Rose’s attorney’s obtained a affidavit from LaVergne which included the following:
- Doe told her that they partied and drank a lot at Rose’s Beverly Hills home.
- Doe was drunk enough that she was not sure what happened that night.
- Doe was unsure if the men in her apartment were the Defendants.
- In describing the night, Doe did not use the word “rape” or “gang rape” and did not mention or ask whether she should call the police or go to the hospital. She did not mention “rape” until after she had become mad at Rose for not paying for the sex belt.
- In responding to LaVergne’s asking her if she was going to go to the police, Doe said she was just going to file a civil case and not talk with the police.
- LaVergne was “concerned when [she] saw the TMZ post in which [Doe] was reported to be demanding over $20 million from Derrick Rose for alleged emotional distress for rapes that she hadn’t mentioned to me during several conversations she and I had at work the very next day.”
- [UPDATE: LaVergne recently moved to Miami and will not be a live witness at trial. Rose’s lawyers plan on reading parts of her deposition transcript to the jury. Here is her full deposition transcript.]
Rose’s expert witnesses who will testify at trial:
- Ernest Lykissa: Dr. Lykissa is an expert of forensic toxicology. He will testify that, in his professional opinion: (1) Doe was not given Rohypnol (date rape drug) the night of August 26/27, 2013; (2) the symptoms [Doe] describes are of “advanced Alcoholic Intoxication with vomiting which places her blood alcohol content levels great than 0.2 g/dL”; and (3) Doe would not have been able to text Rose or go to work the next day had she been given Rohypnol. Read Dr. Lykissa’s full report here.
- Jayme M. Jones: Dr. Jones is a clinical psychologist that will rebut Doe’s expert’s opinion regarding her emotional distress. Dr. Jones conducted a mental examination of Doe on September 8th.
Rose’s Key Documents:
- Text messages from Doe to Rose about bringing another girl over and going to the “girls on girls store.”
- Text messages from Doe to Rose requesting that he come back to her apartment early in the morning on August 27, 2013:
- Text message from Doe to Rose the next morning asking for money:
- Text messages from Doe to Rose suggesting that Doe “was sexually adventurous with him”:
- Text messages between Doe and her former roommate and coworker Keyana LeVergne:
- Doe to LaVergne on October 10, 2015: [discussing joint payments] “Ok lets keep it at 90 then thats 6 months. Lol and i can even pay the whole couch off around xmas my dad gives me money not presents for xmas every year. then u just give me payment and since we finally filed against derrick we soon will be will be returning his tv and ill get us a Plasma.”
- Doe to LaVergne on October 10, 2015: “I feel bad in many ways for myself and Thomas Brandon and you. I’m the one that kept this lawsuit going and dragged Brandon with me. When I look back at all our conversations via text I told you multiple times my financial situation and how I could not let this lawsuit go because of this.”
- 34 photographs of Doe from various social media outlets (Instagram, Twitpic, and Facebook) and photos from Gabriela Chavez showing Doe partying in Las Vegas weeks after the alleged rape. [UPDATE: The judge ruled that Rose may only use five of these pictures at trial.]
Disputes to be Decided Before Trial
Despite being less than a month away, there are still a number of issues to be decided before the trial begins. All of these issues will be argued in front of the presiding judge on September 20th. Typically, the judge in this case has handed out a “tentative ruling” at the hearing, listened to arguments on each issue, and then issued a formal written ruling within a week. Here is what the judge will decide:
Whether to Reveal Doe’s Identity at trial: As noted earlier, in June the judge rejected Rose’s first attempt but noted that Rose could revisit the issue before trial. In his renewed request, 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 against him that could 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…”
Doe responds 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.
The judge’s ruling will shape how the media is able to cover the trial both by whether the media is able to report Doe’s real name and by how much access will be granted to media during trial.
[UPDATE: The judge ruled that Doe must use her real name during trial.]
Whether to Order Sanctions for Doe’s Parents’ Failure to be Deposed: Rose has also 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 they did not show up, citing 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.
As is the case in most civil trials, the parties have each filed pre-trial motions seeking to limit or preclude the evidence (called motions in limine). Here are the key requests:
Doe seeks to prevent Rose from introducing photos of Doe partying in Las Vegas a 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.”
[UPDATE: Rose may use five photos at trial.]
Doe seeks to prevent Rose from introducing evidence of her social interactions with her attorney Brandon Anand: Rose seeks to introduce evidence at trial that Doe and her attorney Brandon Anand have a close personal relationship. It was alleged by Keyana LaVergne during her deposition that Mr. Anand may have “a crush” on Doe:
LaVergne also stated that she witnessed Mr. Anand smoking marijuana at her and Doe’s apartment at least 20 times:
Doe argues that LaVergne’s testimony is completely irrelevant. Rose counters that the close personal relationship is relevant to Mr. Anand’s ability to competently represent Doe and exercise professional, independent judgment separate and apart form his emotional attachment to Doe.
[UPDATE: Rose cannot use this evidence at trial.]
Doe’s seeks to prevent Rose from introducing evidence of Doe’s prior relationships or 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.
[UPDATE: The judge partially granted and partially denied Doe’s request. The judge filed his order under seal so it is unclear what evidence will be allowed and what evidence will be kept out.]
Co-Defendant Allen seeks to prevent Doe from introducing evidence of phone calls to “massage parlors” and “escort services”: Doe plans on introducing evidence at trial that based on Allen’s phone records, he called various escort services a few weeks after the alleged assault to show that around that time “he was seeking out sex” and it was his intent “to have sex with anyone during that time period.” Allen argues that this evidence is irrelevant and hearsay.
[UPDATE: Doe cannot use this evidence during trial.]
Rose seeks to prevent any references to Doe’s claim that she was drugged on August 26-27, 2013: In the complaint, Doe alleges that “an unknown drug” was placed in Doe’s drink for the purpose of carrying out Defendants scheme to each have 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.
[UPDATE: Doe can testify that she felt drugged while testifying at trial.]
Rose seeks to exclude a number of Doe’s exhibits, including the Lady Gaga video: Doe plans on introducing a number of videos, including one of her attending a “Consent is Mandatory” event, one of her watching Lady Gaga’s “Till it Happens to You” Oscar Performance, and one of her acne symptoms. Rose argues that the videos – which were not produced during discovery – are highly prejudicial to him and are “lawyer-manufactured evidence.” Doe responds that the videos are relevant to her emotional state and symptoms after the alleged sexual assault.
[UPDATE: The Lady Gag video cannot be shown at trial.]
Potential for Settlement
The parties could settle the case at any point leading up to (or even during) trial. On one hand, there are compelling reasons to believe that this case will settle before it goes to trial on October 4th. Both parties have a lot to gain by settling. Doe can avoid the possibility of having to reveal herself at trial and relive a traumatic experience. She will have the certainty of some money in her pocket, even if it is not as much as she could win at trial. The terms of her agreement with her lawyers have not been disclosed, however, it is possible that she is on the hook for attorneys fees regardless of the outcome of trial.
Rose can avoid a further media storm of negative PR, relieve himself of any distractions as he starts his Knicks’ career, and lessen the possibility that his lucrative Adidas deal is voided. Rose has the money to fund a settlement. He is set to make over $21 million with the Knicks this year and signed a 13-year $185 million endorsement contract with Adidas in 2012 (which was the richest athlete endorsement deal ever at the time). If the case does settle, expect Rose to not admit any fault in the settlement agreement.
On the other hand, there are reasons to think the case will make it to trial. First, the parties have already formally mediated the case two times, before the case was filed in mid-2014, and again in November 2015, and did not come to an agreement. It is likely that the parties have also had informal settlement agreements since the last mediation and still have not come to a resolution.
Despite all of this, it is important to keep in mind that deadlines often spur action and there is no bigger deadline than the start of trial. Thus the parties have plenty of time to figure something out unless the relationship between the attorneys in this case is so bad that meaningful settlement talks are no longer possible. Lawyers that I have spoken with are split on whether the slash and burn legal tactics are mere posturing for settlement or true irreconcilable differences between the parties’ attorney that could hinder or prevent settlement talks.
Potential Criminal Charges: As noted above, Doe previously reported the incident to the police and they declined to charge Rose with a crime. Technically, Rose is still within the applicable statute of limitations for criminal assault charges in California, however, it is very unlikely that the authorities and prosecutor would revisit charging Rose.
Potential NBA Suspension: Adam Silver can suspend NBA players for “conduct that does not conform to standards of morality or fair play, that does not comply at all times with all [laws], or that is prejudicial or detrimental to the Association.” If Rose loses at trial, a strict reading of Silver’s power appears to give him the option of suspended Rose, however, a NBA player has never been suspended for losing a civil lawsuit, making such a suspension unlikely.
Impact on Adidas Contract: Just about every modern endorsement deal, presumably including Rose’s, includes a morals clause that allows the endorser to terminate the contract if the athlete engages in behavior that could tarnish him or the endorser’s image. In theory, Adidas could attempt void Rose’s $185 million deal, although the exact language of the morals clause (which is unknown and various from contract to contract) would determine what scenarios would allow Adidas to do so. This may come down to a business decision: Does Adidas believe that Rose is still worth his deal?