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Case 2:15-cv-07503-MWF-JC Document 192-1 Filed 08/22/16 Page 1 of 19 Page ID

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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777 South Figueroa Street, Suite 4900
Los Angeles, CA 90017
Tel (213) 630-5000 • Fax (213) 683-1225

BAUTE CROCHETIERE & GILFORD LLP

1 BAUTE CROCHETIERE & GILFORD LLP
MARK D. BAUTE (State Bar No. 127329)
2 mbaute@bautelaw.com
3 COURTNEY A. PALKO (State Bar No. 233822)
cpalko@bautelaw.com
4 777 South Figueroa Street, Suite 4900
Los Angeles, California 90017
5 Telephone: (213) 630-5000
Facsimile: (213) 683-1225
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7 Attorneys for Defendant
DERRICK ROSE
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12 JANE DOE (A Pseudonym),
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Plaintiff,
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v.
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16 DERRICK ROSE, an Individual;
RANDALL HAMPTON, an
17 Individual; RYAN ALLEN, an
Individual; and DOES 1-10 Inclusive,
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Defendants.
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Case No. CV 15-7503-MWF(JCx)
Complaint Filed: August 26, 2015
DEFENDANT DERRICK ROSE’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO PRECLUDE
PLAINTIFF’S USE OF A
PSEUDONYM AT TRIAL
Hearing:
Date: September 19, 2016
Time: 11:00 a.m.
Place: Courtroom 1600
Pretrial Conference: September 19, 2016
Trial Date: October 4, 2016

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Judge:
Courtroom:

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Hon. Michael Fitzgerald
1600

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248147.1

Case No. CV 15-7503-MWF(JCx)
DEFENDANT DERRICK ROSE’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO
PRECLUDE PLAINTIFF’S USE OF A PSEUDONYM AT TRIAL

Case 2:15-cv-07503-MWF-JC Document 192-1 Filed 08/22/16 Page 2 of 19 Page ID
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TABLE OF CONTENTS

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Page(s)

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3 MEMORANDUM OF POINTS AND AUTHORITIES............................................. 1
4 I. 

INTRODUCTION ............................................................................................. 1 

5 II. 

STATEMENT OF FACTS................................................................................ 2 

6 III. 

ARGUMENT .................................................................................................... 8 

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A. 

Legal Standard ........................................................................................ 8 

8

B. 

Plaintiff Must Identify Herself at Trial Pursuant to Federal Rules
of Civil Procedure 10(a) and 17(a)(1). .................................................... 8 

C. 

Plaintiff’s Desire for Anonymity Does Not Outweigh the
Significant Prejudice to Mr. Rose and the Public’s Interest in
Knowing Plaintiff’s Identity. .................................................................. 9 

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BAUTE CROCHETIERE & GILFORD LLP

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1. 

Plaintiff Has Not Articulated Any Fear of Injuries or
Harassment to Support Her Use of a Pseudonym. ....................... 9 

2. 

The Use of a Pseudonym Significantly Prejudices Mr.
Rose. ........................................................................................... 10 

3. 

The Public Has a Strong Interest in Disclosure. ......................... 11 

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D. 

The Court May Impose Reasonable Restrictions on Media
Coverage at Trial to Shield Plaintiff’s Identity and Ensure a Fair
Trial. ...................................................................................................... 12 

E. 

Counsel Have Met and Conferred, but Plaintiffs’ Counsel Wants
to Have as Many as Five “Cameras” in the Courtroom, Which
Seems Unlikely and Inappropriate in Any Event. ................................ 13 

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IV. 

CONCLUSION ............................................................................................... 14 

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TABLE OF AUTHORITIES

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Page(s)

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CASES 
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178 & n.46 (1999) ...................................................................... 12

6
7 FEDERAL CASES 

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BAUTE CROCHETIERE & GILFORD LLP

8 4 Exotic Dancers v. Spearmint Rhino,
No. 08–4038, 2009 WL 250054, at *1 (C.D. Cal. Jan. 29, 2009)................. 8, 9
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Cal. First Amendment Coal. v. Woodford,
299 F.3d 868 n.2 (9th Cir. 2002) ..................................................................... 13
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11 Doe v. Cabrera,
307 F.R.D. 1 (D.D.C. 2014) .............................................................................. 1
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Does I thru XXIII v. Advanced Textile Corp.,
214 F.3d 1058 (9th Cir. 2000) ................................................................... 1, 8, 9
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14 Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) ............................................................................................ 12
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Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 n.18 (1980) ................................................................................ 12
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17
18 STATUTES 
19 Federal Rule of Civil Procedure § 10 .......................................................................... 8
20 Federal Rule of Civil Procedure § 10(a) ...................................................................... 8
21 Federal Rule of Civil Procedure § 17(a)(1) ................................................................. 8
22 L.R. 83-6.1.5 .............................................................................................................. 13
23 L.R. 83-6.2.1 .............................................................................................................. 13
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DEFENDANT DERRICK ROSE’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO
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MEMORANDUM OF POINTS AND AUTHORITIES

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2 I.

INTRODUCTION

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The Court’s June 17, 2016 order recognized that “to avoid prejudice to

4 Defendant Rose, Plaintiff’s identity may be revealed at trial.” ECF # 99 at 1.
The Court further notes that Plaintiff’s anonymity could
significantly prejudice Defendant Rose if this action were
to progress to trial. Indeed, a jury may interpret the Court’s
permission for Plaintiff to conceal her identity as a
comment on the harm Defendants allegedly caused. The
Court will therefore reevaluate the balance of interests
regarding Plaintiff’s anonymity at the pretrial conference.

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BAUTE CROCHETIERE & GILFORD LLP

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ECF # 99 at 6. Fairness to Mr. Rose requires that Plaintiff use her real name at trial.
Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000) (“We
recognize that the balance between a party’s need for anonymity and the interests
weighing in favor of open judicial proceedings may change as the litigation
progresses.”); Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) (“If, however, a trial is
ultimately needed to resolve this dispute, then the defendant’s ability to receive a fair
trial will likely be compromised if the Court allows the plaintiff to continue using a
pseudonym, as the jurors may construe the Court’s permission for the plaintiff to
conceal her true identity as a subliminal comment on the harm the alleged encounter
with the defendant has caused the plaintiff. Therefore, if this case proceeds to trial, the
plaintiff will not be allowed to use a pseudonym.”).1

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Plaintiff alleges that she and defendant Derrick Rose (“Defendant” or “Mr.
Rose”) had a relationship spanning several years that included sexual intimacy. She
alleges Mr. Rose and two other defendants, Ryan Allen and Randall Hampton, drugged

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Mr. Rose relies on and refers the Court to the parties’ prior briefing on these issues
(ECF # 65, 71, 80), the Baute and LaVergne declarations submitted in support of Mr.
27 Rose’s motion (ECF # 64, 65-3), and the Court’s June 17, 2016 order thereon (ECF #
28 99).
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DEFENDANT DERRICK ROSE’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO
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1 her on August 26 or August 28, 2013, when she visited Mr. Rose’s rented house in
2 Beverly Hills, then supposedly trespassed into her apartment early the next morning
3 (August 27 or August 29) and raped her without her consent. All three defendants
4 strongly deny those allegations. Plaintiff’s own text messages – wrongfully withheld
5 until the day after her deposition – contradict the allegations in the Complaint. The
6 texts show Plaintiff being adventurous, claiming to buy and bringing a sex belt to have
7 fun with Mr. Rose, and then asking Mr. Rose to drive over to her house at 1 a.m. for
8 more consensual sexual interaction. Plaintiff also withheld texts showing that when she
9 woke up the next morning, she asked Mr. Rose for reimbursement for her cab fare and

11 had to get to work.
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BAUTE CROCHETIERE & GILFORD LLP

10 the sex toys she claimed to purchase, and mentioned only that she had a hangover and

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This is not a rape case. It’s pure and simple extortion by a plaintiff who wants to

13 hide behind the cloak of anonymity while seeking millions in damages from a celebrity
14 with whom she was in a long-term nonexclusive consensual sexual relationship.
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Plaintiff’s use of the pseudonym “Jane Doe” at trial is improper and highly

16 prejudicial to Mr. Rose’s case. Plaintiff’s refusal to identify herself violates Federal
17 Rules of Civil Procedure 10(a) and 17(a)(1). Mr. Rose seeks to compel Plaintiff to
18 abandon her incomplete, selective, and self-serving attempt to hide behind the
19 pseudonym “Jane Doe” and identify herself at trial. Plaintiff cannot continue to have
20 the best of both worlds—using a pseudonym to further her purposes while
21 “significantly prejudic[ing]” (ECF # 99 at 6) Mr. Rose’s ability to fully and fairly
22 defend himself at trial. As discussed below, Mr. Rose will be seriously disadvantaged
23 if Plaintiff is allowed to hide behind a pseudonym at trial.
24 II.

STATEMENT OF FACTS

25

Plaintiff filed this action, using the pseudonym “Jane Doe,” in the Superior Court

26 of California for the County of Los Angeles on August 26, 2015. Mr. Rose removed
27 the action to this Court. ECF # 1.
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Plaintiff’s case lacks merit, as is revealed by the text messages she belatedly

2 produced in this action. Until she was tripped up during her January 21, 2016
3 deposition, Plaintiff attempted to wrongfully withhold highly relevant text messages
4 that she exchanged with Mr. Rose before and after the alleged assault, despite Mr.
5 Rose’s document requests seeking them and Plaintiff’s response that she would produce
6 them.2
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Plaintiff’s own communications with Mr. Rose demonstrate that she was sexually

8 adventurous with Mr. Rose, that she volunteered to bring a sex belt to have fun with
9 Mr. Rose, that she asked Mr. Rose for alcohol and drugs, and that she repeatedly asked

11 Plaintiff also withheld texts showing that when she woke up the next morning, she
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BAUTE CROCHETIERE & GILFORD LLP

10 Mr. Rose to drive over to her house at 1 a.m. for more consensual sexual interaction.

12 asked Mr. Rose for reimbursement for her cab fare and the sex toy she claimed to have
13 purchased (plaintiff admits she lied about paying for the sex belt), and mentioned only
14 that she had a hangover and had to get to work.
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Plaintiff’s own admissions undermine the validity of her allegations in this

16 lawsuit. The jury should not be in a position where it “may interpret the Court’s
17 permission for Plaintiff to conceal her identity as a comment on the harm Defendants
18 allegedly caused.” ECF # 99 at 6. The Court must ensure that Mr. Rose, who has not
19 been charged or convicted of a crime, is not unfairly prejudiced at trial. Compelling
20 Plaintiff to use her true name at trial is necessary to ensure that the jury does not make
21 any adverse inference against Mr. Rose.
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The texts state, in relevant part:

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When questioning at her deposition uncovered the existence of those text messages,
she agreed to produce them, but did not do so until after her deposition was adjourned.
Mr. Rose requested those text messages in his Demands for Productions Nos. 1, 11, and
12, which specifically asked for her texts to and from Mr. Rose. ECF # 64 (Apr. 18,
2016 Baute Decl.) ¶ 9. Plaintiff responded to the requests for production that she would
produce all non-privileged responsive documents. ECF # 64 (Apr. 18, 2016 Baute
Decl.) ¶ 9.
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 6/20/2013 01:07:45 PM Plaintiff to Mr. Rose: “Dam babe U making you

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pussy wet” (ECF # 71-2 at 74).
 6/20/2013 01:24:35 PM Plaintiff to Mr. Rose: “I’m about to take a cold ass

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shower with my vibrator smdh” (ECF # 71-2 at 74).

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 6/20/2013 01:40:56 PM Plaintiff to Mr. Rose: “What’s your email. . I’ma try

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from my mac my phone videos don’t go through . .bay u now u the only one

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than can make her cum and drip and cum again” (ECF # 71-2 at 75).

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 6/27/2013 01:28:28 AM Plaintiff to Mr. Rose: “I would explore and open

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myself for anything only to satisfy my man and u are clearly showing me our
relationship is based on your sexual fantasies.” (ECF # 71-2 at 78).
 7/23/2013 08:36:10 PM Mr. Rose to Plaintiff: “We good but I’m not messing

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BAUTE CROCHETIERE & GILFORD LLP

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wit u like that anymore. (ECF # 71-2 at 79).
 7/23/2013 08:48:51 PM Mr. Rose to Plaintiff: “It’s no hate wit u at all. U got

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mad at me for askin a question” (ECF # 71-2 at 79).
 7/23/2013 09:18:56 PM Mr. Rose to Plaintiff: “All I can do is ask. It was

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nice meeting u and I wish u nothing but the best” (ECF # 71-2 at 79).
 7/23/2013 09:23:20 PM Plaintiff to Mr. Rose: “If my flaw is wanting and

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waiting and keeping my pussy for you, then my bad.

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howeva many bitches but shit I had never messed or fucked with more than 1

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@ a time so my bad for that too. U did give me some good dick so thanks

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and I guess I have to b less selfish with my pussy next time.” (ECF # 71-2 at

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79).

I can share u with

 8/26/2013 10:12:58 AM Plaintiff to Mr. Rose: “U the reason why I wake up

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horny” (ECF # 71-2 at 81).
 8/26/2013 10:38:23 AM Plaintiff to Mr. Rose: “Bet what drink u got there”

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(ECF # 71-2 at 82).
 8/26/2013 10:39:08 AM Mr. Rose to Plaintiff: “What do u drink?” (ECF #

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71-2 at 82).
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 8/26/2013 10:54:15 AM Plaintiff to Mr. Rose: “Don julio” (ECF # 71-2 at

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82).

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 8/26/2013 12:00:33 PM Plaintiff to Mr. Rose: “Babe I need that pink belt I

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sent you the picture off and I have a chick she a massage therapist in the

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valley can u send a driver to pick me and then ill go get her from work. I told

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her I would take care of her” (ECF # 71-2 at 82).

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 8/26/2013 12:18:15 PM Plaintiff to Mr. Rose: “Ima have him take us to the

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girls on girls store and grab the belt u want anything else from there.” (ECF #

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71-2 at 82).
 8/26/2013 08:04:37 PM Plaintiff to Mr. Rose: “Do u want weed?” (ECF #

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BAUTE CROCHETIERE & GILFORD LLP

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71-2 at 83).

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 8/26/2013 08:41:18 PM Plaintiff to Mr. Rose: “I’m finally in the car. He felt

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so bad about the confussion at least he has some drank lol” (ECF # 71-2 at

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83–84).
 8/26/2013 08:58:50 PM Mr. Rose to Plaintiff: “Naw I dont” (ECF # 71-2 at

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84).
 8/26/2013 09:11:07 PM Plaintiff to Mr. Rose: “U got e babe she wants some

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we just left the sex store.”3 (ECF # 71-2 at 84).

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 8/27/2013 01:40:32 AM Plaintiff to Mr. Rose: “No she was not anyways fuck

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the bitch . . I left my belt and my shit n yo bathroom.and u need to come to

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me right now.” (ECF # 71-2 at 84).
 8/27/2013 01:42:14 AM Mr. Rose to Plaintiff: “What’s the address” (ECF #

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71-2 at 85).

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 8/27/2013 01:43:15 AM Plaintiff to Mr. Rose: “[address omitted]”

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 8/27/2013 01:45:21 AM Mr. Rose to Plaintiff: “I’m finna have my guy come

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Mr. Rose did not want to have sex with Plaintiff’s friend, which apparently upset her
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 8/27/2013 01:46:19 AM Plaintiff to Mr. Rose: “Come with him babe”

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 8/27/2013 01:48:15 AM Mr. Rose to Plaintiff: “He bringing u back here and

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777 South Figueroa Street, Suite 4900
Los Angeles, CA 90017
Tel (213) 630-5000 • Fax (213) 683-1225

we gon make sure u get to work” (ECF # 71-2 at 85).

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 8/27/2013 01:55:00 AM Plaintiff to Mr. Rose: “I need u to come with him”

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 8/27/2013 01:56:14 AM Mr. Rose to Plaintiff: “Why u comin back to me”

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 8/27/2013 01:56:45 AM Plaintiff to Mr. Rose: “So I want you here too”

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 8/27/2013 01:59:28 AM Mr. Rose to Plaintiff: “He bringing u back here”

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 8/27/2013 02:03:27 AM Plaintiff to Mr. Rose: “I know he Will, I want u here

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BAUTE CROCHETIERE & GILFORD LLP

pick u up”

too”

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 8/27/2013 07:49:38 AM Plaintiff to Mr. Rose: “Im hangover, didn’t make it

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to work, and kendra is blowing my phone up. U never payed me back or

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even payed for Kendras Taxi.” (ECF # 71-2 at 86).

14 ECF # 64 (Apr. 18, 2016 Baute Decl.) ¶ 8 & Ex. D (Doe_Production_Set_One_122–
15 23); ECF # 71-2 (Apr. 26, 2016 Anand Decl. Ex. B) at 74–88.
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Plaintiff described the events of the night in dispute to a former colleague and

17 roommate the day after they occurred, without mentioning anything about any rape or
18 sexual assault. She told her friend, Keyana LaVergne, that she got drunk and partied
19 with Mr. Rose and two of his friends, went in the swimming pool, and left. ECF #65-3
20 (Dec. 14, 2015 Declaration of Keyana LaVergne) ¶ 8. She said she was so drunk that
21 she did not know what had happened that night, but that her “roommate at her
22 apartment told her that she saw two black guys in her apartment, and that one of the
23 men was confused about the location of the bathroom.” ECF #65-3 (Dec. 14, 2015
24 LaVergne Decl.) ¶ 9. She said “she was not sure that if the men in her apartment were
25 Derrick [Rose] and his two friends, but that something must have happened,” although
26 she did not use the word rape. ECF #65-3 (Dec. 14, 2015 LaVergne Decl.) ¶ 10.
27

Plaintiff’s strategy appears to be to use the pendency of the civil lawsuit to try to

28 force a very large and extortionate settlement payment that is not based on the merits.
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1 Plaintiff’s deposition transcript and August 2013 text exchanges demonstrate that all of
2 her sexual interaction with Mr. Rose was consensual. The text messages, which
3 Plaintiff withheld until after her deposition, show her volunteering to buy sex toys and
4 bringing a sex belt from a “girls on girls” store to Mr. Rose, and asking Mr. Rose to
5 engage in adventurous sexual interactions with her, as late as 2 a.m. on the day she
6 alleges Mr. Rose raped her. When the evening was over, Plaintiff’s contemporaneous
7 text exchanges do not mention anything about non-consensual interaction with Mr.
8 Rose. Instead, she references a need to get to work that next morning and that she
9 wants to be reimbursed for the cab fare and the cost of the sex toys she claimed to have

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10 purchased. ECF #64 (Apr. 18, 2016 Baute Decl.) ¶ 6.
Despite the use of a pseudonym in her Court filings, Plaintiff has been revealing

12 her identity in the prosecution of her case. Plaintiff further obtained third party
13 declarations in this matter; in order to obtain them, she used her name with the third
14 parties. ECF # 64 (Apr. 18, 2016 Baute Decl.) ¶ 4 & Ex. B. Plaintiff has repeatedly
15 used her full name in documents she has produced in this action without any
16 confidentiality restriction.4 ECF # 64 (Apr. 18, 2016 Baute Decl.) ¶ 5 & Ex. C.
17

Rather than allow a calculating 30-year old adult to misuse the “Jane Doe”

18 statute for her own financial gain by trying to threaten Mr. Rose with irreparable
19 reputational damage as the basis for an extortionate settlement payment, the only fair
20 way for this case to be tried to a jury is for Plaintiff to recognize that she cannot
21 continue to hide behind the pseudonym when her credibility is a key issue and the
22 evidence shows a clear consensual sexual encounter. ECF #64 (Apr. 18, 2016 Baute
23 Decl.) ¶ 7.
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Plaintiff first designated her document production as confidential on April 11, 2016.

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1 III.

ARGUMENT

2

A.

3

Federal Rule of Civil Procedure 10(a) provides, in relevant part: “Every pleading

Legal Standard

4 must have a caption with the court’s name, a title, a file number, and a Rule 7(a)
5 designation. The title of the complaint must name all the parties; the title of other
6 pleadings, after naming the first party on each side, may refer generally to other
7 parties.” Federal Rule of Civil Procedure 17(a)(1) states, in relevant part: “An action
8 must be prosecuted in the name of the real party in interest.”
9

B.

of Civil Procedure 10(a) and 17(a)(1).

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Plaintiff Must Identify Herself at Trial Pursuant to Federal Rules

Ms. Doe’s “use of fictitious names runs afoul of the public’s common law right

12 of access to judicial proceedings . . . and Rule 10(a)’s command that the title of every
13 complaint ‘include the names of all the parties.’” Does I thru XXIII v. Advanced Textile
14 Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) (citations omitted) (holding that the district
15 court abused its discretion by dismissing a complaint rather than allowing foreign
16 workers to proceed anonymously where they faced extraordinary injuries such as
17 deportation and arrest, had been threatened, and were vulnerable to retaliation).
18

Here, Plaintiff’s refusal to identify herself violates Rule 10. As Plaintiff is not

19 prosecuting this action in her real name, she is also in violation of Rule 17(a)(1). The
20 plain language of these two rules states that a plaintiff must publicly identify himself or
21 herself, which Plaintiff has failed to do in this litigation. Plaintiff may not proceed
22 under a pseudonym absent a court order authorizing her to do so, which she never
23 sought, much less obtained. 4 Exotic Dancers v. Spearmint Rhino, No. 08–4038, 2009
24 WL 250054, at *1 (C.D. Cal. Jan. 29, 2009) (“The Court explained that Plaintiffs could
25 proceed pseudonymously only by seeking leave to do so and meeting the criteria set
26 forth in [cases].”).
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C.

Plaintiff’s Desire for Anonymity Does Not Outweigh the Significant

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Prejudice to Mr. Rose and the Public’s Interest in Knowing

3

Plaintiff’s Identity.

4

Pseudonyms are only allowed in the “unusual” circumstance where they are

5 “necessary ... to protect a person from harassment, injury, ridicule or personal
6 embarrassment.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068
7 (9th Cir. 2000). “A party may preserve his or her anonymity in judicial proceedings in
8 special circumstances when the party’s need for anonymity outweighs prejudice to the
9 opposing party and the public’s interest in knowing the party’s identity.” Id. Here, as

11 outweighs prejudice to Mr. Rose and the public’s interest in knowing her identity.
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BAUTE CROCHETIERE & GILFORD LLP

10 explained in detail below, Plaintiff cannot demonstrate that her need for anonymity

12

1.

Plaintiff Has Not Articulated Any Fear of Injuries or

13

Harassment to Support Her Use of a Pseudonym.

14

Plaintiff has not alleged specific harassment or injury that would result from the

15 use of her true name at trial. Plaintiff’s Complaint summarily states that she is using a
16 pseudonym “for personal, safety, and privacy reasons.” Complaint ¶ 3. Instead of
17 particularized fears, she appears to contend that she has the right to use a pseudonym
18 because of the general nature of her allegations, but she has not articulated any
19 “unusual” threat of injury necessary to proceed under a pseudonym. 4 Exotic Dancers
20 v. Spearmint Rhino, No. 08–4038, 2009 WL 250054, at *1 (C.D. Cal. Jan. 29, 2009)
21 (holding that neither the threat of economic retaliation from nightclubs at which
22 strippers were employed nor their privacy concerns were sufficient to establish a need
23 for anonymity). Plaintiff has no fear of reprisals or retaliation from Mr. Rose or the
24 other defendants. All of the defendants know her identity. Despite her specious claims
25 that Defendants “affiliate with gang members” and that she “reasonably fears” “death”
26 (ECF # 71 at 10), no threats or retaliation have occurred or will occur. Unlike the
27 Advanced Textile plaintiffs, Plaintiff has no fear of deportation or arrest, nor is she a
28 vulnerable foreign worker.
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1

Plaintiff is not a minor who is a true victim of rape or assault. She did not

2 contemporaneously report the alleged rape to law enforcement. She waited two years
3 after the alleged assault to file this lawsuit seeking millions in damages. Plaintiff is a
4 30-year old adult who was in a consensual relationship with Mr. Rose; she was the
5 sexual aggressor that night; she brought another woman with her, she claimed she
6 bought (and did bring) the sex toys, she drank before arriving, and asked Mr. Rose for
7 drugs (which he declined) and alcohol. Plaintiff is older than Mr. Rose, and she has
8 cited no authority for a 30-year old consenting adult to hide behind Jane Doe
9 anonymity in a civil suit targeting a wealthy, famous individual.
Furthermore, Plaintiff has already revealed her name in publicly filed documents

11 and identified herself to third persons. Plaintiff obtained declarations from third parties
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BAUTE CROCHETIERE & GILFORD LLP

10

12 that include her real name – and she presumably used her real name with these third
13 parties to enable them to provide declarations. Plaintiff thus uses her true name when it
14 suits her and hides behind a pseudonym on other occasions in order to make it harder
15 for Mr. Rose to develop a defense, just as she created further obstacles to discovery by
16 hiding contact information for third parties identified in her Complaint, some of whom
17 provided Plaintiff with signed declarations that she later produced in discovery.5
18

Thus, Plaintiff is not concealing her identity to avoid injuries or harassment. If

19 she can reveal herself to third parties when it suits her preferences, she should be
20 compelled to abandon the pseudonym “Jane Doe” and refer to herself using her real
21 name at trial or, in the alternative, dismiss the action.
22

2.

23

The Use of a Pseudonym Significantly Prejudices Mr. Rose.

As the Court noted, Mr. Rose “is a public figure of considerable fame and

24 celebrity.” ECF # 99 at 4. “Plaintiff’s anonymity could significantly prejudice
25 Defendant Rose if this action were to progress to trial. Indeed, the jury may interpret
26
27

5

Mr. Rose filed three joint stipulations to resolve these discovery disputes. Plaintiff
28 also withheld key text messages until after her deposition.
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1 the Court’s permission for Plaintiff to conceal her identity as a comment on the harm
2 Defendants allegedly caused.” Id. at 6.
3

The Court’s analysis is correct. Using the “Jane Doe” pseudonym at trial would

4 likely cause a jury to draw an adverse inference against Mr. Rose. Mr. Rose has not
5 been charged or convicted of any crime in connection with the allegations in Plaintiff’s
6 lawsuit. He is entitled to the presumption of innocence. Plaintiff’s use of a pseudonym
7 undermines that presumption of innocence and Mr. Rose’s right to fairly and fully
8 defend himself at trial in this case.
9

Mr. Rose also faces adverse publicity as a result of this lawsuit, and Plaintiff

11 mentions in Paragraph 14 of the Complaint as part of an attempt to extort money from
777 South Figueroa Street, Suite 4900
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BAUTE CROCHETIERE & GILFORD LLP

10 openly seeks to threaten his endorsement contract with Adidas (which Plaintiff

12 Mr. Rose). The news media are already aware of the lawsuit. Publicly naming Plaintiff
13 will allow Mr. Rose to counter adverse publicity as it will allow him to defend himself
14 by explaining the nature of his relationship with Plaintiff, that the two of them were
15 involved in a long-term purely consensual relationship. Mr. Rose has also been
16 prejudiced by Plaintiff’s use of a pseudonym because third parties have not been able to
17 learn Plaintiff’s identity and provide information about Plaintiff. In contrast, third
18 parties who know Plaintiff and wish to testify in her favor will be able to contact her
19 counsel and share that information.
20

Due to the “significant[] prejudice” (ECF # 99 at 6) to Mr. Rose at trial, the

21 Court should order Plaintiff to use her real name or dismiss this action.
22
23

3.

The Public Has a Strong Interest in Disclosure.

The public has a strong interest in the disclosure of Plaintiff’s identify. In

24 particular, the public has a right to know the identity of parties involved in litigation.
25 This is especially true in a case where one of the parties, Mr. Rose, “is a public figure
26 of considerable fame and celebrity” (ECF # 99 at 4). This is further true because the
27 accusations against Mr. Rose are part of a fabricated extortion attempt. From the
28 beginning of the case, Plaintiff’s various counsel (she has had at least five) have made a
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1 series of extortionate demands threatening to publicly expose Mr. Rose should he fail to
2 pay a large sum of money to Plaintiff. Given the attempts to blackmail Mr. Rose
3 through this lawsuit and threaten his endorsement income, the news media have a
4 strong interest in the identity of his accuser in order to assess the credibility of her
5 allegations, thoroughly fact-check, and accurately report in a fair and balanced manner.
6

D.

The Court May Impose Reasonable Restrictions on Media

7

Coverage at Trial to Shield Plaintiff’s Identity and Ensure a Fair

8

Trial.

9

Plaintiff’s alleged concern that “attorneys for Defendants will quickly place her

11 increase animus against her” (ECF # 71 at 9–10) is unfounded but can be remedied with
777 South Figueroa Street, Suite 4900
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BAUTE CROCHETIERE & GILFORD LLP

10 identity in the public domain, and assail her as a ‘slut’ and ‘gold digger’ in order to

12 appropriate restrictions on the media and public access to the proceedings. Even if the
13 courtroom proceeding uses Plaintiff’s real name, media coverage of the trial can be
14 restricted to protect Plaintiff’s privacy and ensure a fair trial. Civil cases may be closed
15 proceedings when necessary to guarantee a fair trial. NBC Subsidiary (KNBC-TV), Inc.
16 v. Superior Court, 20 Cal. 4th 1178, 1222 & n.46 (1999) (citing Press-Enterprise Co. v.
17 Superior Court, 478 U.S. 1, 14 (1986) (“We assume that the high court similarly would
18 find that a civil litigant’s right to a fair trial also constitutes an overriding interest
19 supporting closure.”)). Given the exceptionally prejudicial nature of the case and the
20 potential intensity of media coverage, a narrowly tailored closure of the proceedings
21 might be necessary and proper to guarantee a fair trial to all parties. NBC Subsidiary,
22 20 Cal. 4th at 1224. Courtroom access may be denied or regulated by reasonable time,
23 place, and manner restrictions to maintain dignity and decorum, or when courtroom
24 capacity precludes entry by every person who wishes to attend. Richmond Newspapers,
25 Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980); NBC Subsidiary, 20 Cal. 4th at 1222
26 n.46.
27

The Court should impose reasonable restrictions on media and public access to

28 the proceedings. For example, video, recording, and electronic devices should be
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1 prohibited in the courtroom. L.R. 83-6.2.1 (prohibiting use or possession of any device
2 capable of taking, making, recording, or broadcasting any still image or audio or video
3 recording). Electronic devices including smartphones and laptops should be required to
4 be turned off completely inside the courtroom at all times. L.R. 83-6.1.5. The Court
5 should limit the number of media members allowed in, and restrict exiting and
6 reentering, the courtroom to minimize disruptions. Because courtrooms have limited
7 capacity, and the general public has the same right of access as does the media (see Cal.
8 First Amendment Coal. v. Woodford, 299 F.3d 868, 873 n.2 (9th Cir. 2002), the media’s
9 presence should not preclude the general public from being able to witness the

11
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Los Angeles, CA 90017
Tel (213) 630-5000 • Fax (213) 683-1225

BAUTE CROCHETIERE & GILFORD LLP

10 proceedings.
E.

Counsel Have Met and Conferred, but Plaintiffs’ Counsel Wants to

12

Have as Many as Five “Cameras” in the Courtroom, Which Seems

13

Unlikely and Inappropriate in Any Event.

14

Defendants do not think any media restrictions are warranted or necessary, partly

15 because the media has to some degree lost interest in the case. The parties met and
16 conferred on this issue of potential media restrictions on August 22, 2016, and were
17 unable to reach an agreement. Plaintiff’s counsel indicated that they wanted to allow as
18 many as “five cameras” in the courtroom during the trial, a scenario which makes very
19 little sense and would seem to be inappropriate, distracting to the jury, and the media
20 does not appear to even seek that sort of access in this case. Plaintiff also seemed to
21 want to “gag” the media and prevent them from mentioning Plaintiff by her true name,
22 but was unable to clearly state is that is their goal or desire. If Plaintiff endeavors to
23 again “block” anyone from using the full name of a 30-year old adult in a public
24 courtroom, Defendants would merely point out that such restrictions on public access
25 would appear to be unconstitutional, and perhaps more salient, would undermine the
26 purpose of this very motion.
27

Defendants simply suggest the following approach: grant the motion to avoid

28 prejudice to Defendants, and decide what restrictions to impose on media coverage, if
248147.1
Case No. CV 15-7503-MWF(JCx)
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1 any, when the trials starts, because there has been very little media coverage, and no
2 media outlets have sought or filed for access. If, as it appears, the trial starts and only
3 one or two print media sources are present, there may be no need for any restrictions or
4 protective approaches to be imposed on the media. If the media attends and appears to
5 be a potential distraction, Defendants merely request, and insist, that any protections or
6 restrictions be equal for both sides, so that Plaintiff is not allowed to continue with her
7 one sided extortion attempts while hiding behind her pseudonym.
8 IV.

CONCLUSION

9

For the reasons set forth above, Mr. Rose requests that the Court require Plaintiff

11 reasonable restrictions on media coverage to ensure a fair trial.
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Tel (213) 630-5000 • Fax (213) 683-1225

BAUTE CROCHETIERE & GILFORD LLP

10 to use her true name at trial. Additionally, Mr. Rose requests that the Court impose

12
13 DATED: August 22, 2016

BAUTE CROCHETIERE & GILFORD LLP

14
15
By: /s/ Mark D. Baute
MARK D. BAUTE
COURTNEY A. PALKO
Attorneys for Defendant
DERRICK ROSE, an individual

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1

PROOF OF SERVICE

2

JANE DOE v. DERRICK ROSE
Case No. CV 15-7503-MWF(JCx) [2235.1]

3
4 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this
action. I am employed in the County of Los Angeles, State of California. My
6 business address is 777 South Figueroa Street, Suite 4900, Los Angeles, CA 90017.
5

On August 22, 2016, I served true copies of the following document(s)
described as DEFENDANT DERRICK ROSE’S MEMORANDUM OF
8 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO PRECLUDE
PLAINTIFF’S USE OF A PSEUDONYM AT TRIAL on the interested parties in
9 this action as follows:
7

(**SEE ATTACHED SERVICE LIST**)


BY CM/ECF NOTICE OF ELECTRONIC FILING: I
electronically filed the document(s) with the Clerk of the Court by using the
12 CM/ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system. Participants in the case who are not registered
13 CM/ECF users will be served by mail or by other means permitted by the court
rules.
14
I declare under penalty of perjury under the laws of the United States of
15 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
16
Executed on August 22, 2016, at Los Angeles, California.
17
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777 South Figueroa Street, Suite 4900
Los Angeles, CA 90017
Tel (213) 630-5000 • Fax (213) 683-1225

BAUTE CROCHETIERE & GILFORD LLP

10

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/s/ Courtney A. Palko
COURTNEY A. PALKO

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Case No. CV 15-7503-MWF(JCx)
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1

SERVICE LIST

2

JANE DOE v. DERRICK ROSE
Case No. CV 15-7503-MWF(JCx) [2235.1]

777 South Figueroa Street, Suite 4900
Los Angeles, CA 90017
Tel (213) 630-5000 • Fax (213) 683-1225

BAUTE CROCHETIERE & GILFORD LLP

3
4 Brandon J. Anand, Esq.
ANAND LAW, PC
5 5455 Wilshire Blvd., Suite 1812
Angeles, CA 90036
6 Los
Telephone: (323) 325-3389
7 Fax: (323) 488-9659
E-mail: brandon@anandlaw.com;
8 info@anandlaw.com

Attorneys for Plaintiff
JANE DOE

9 Waukeen Q. McCoy, Esq.
McCOY LAW FIRM P.C.
10 555 Montgomery Street, Suite 1100
San Francisco, CA 94111
11 Telephone: (415) 675-7705
Fax: (415) 675-2530
12 E-mail: mail@mccoyslaw.com

Attorneys for Plaintiff
JANE DOE

13 Thaddeus J. Culpepper, Esq.
14 CULPEPPER LAW GROUP
3818 Crenshaw Blvd., Suite 905
15 Los Angeles, CA 90008
Telephone: (310) 997-0806
16 E-mail: culpepper@alumni.pitt.edu

Attorneys for Plaintiff
JANE DOE

17 Patrick M. Maloney, Esq.
THE MALONEY FIRM, APC
18 2381 Rosecrans Avenue, Suite 405
El Segundo, California 90245
19 Telephone: (310) 540-1505
(310) 540-1507
20 Fax:
E-mail: pmaloney@maloneyfirm.com

Attorneys for Defendants
RANDALL HAMPTON and RYAN
ALLEN

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Michael D. Monico, Esq.
Barry A. Spevack, Esq.
MONICO & SPEVACK
20 S. Clark Street, Suite 700
Chicago, IL 60603
Telephone: (312) 782-8500
Fax: (312) 759-2000
E-mail: mm@monicolaw.com

Attorneys for Defendants
RANDALL HAMPTON and RYAN
ALLEN

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Case No. CV 15-7503-MWF(JCx)
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DEFENDANT DERRICK ROSE’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO
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