MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 215

NOTICE by DUKE UNIVERSITY re #214 Response in Opposition to Motion Notice of Duke University's Response to Plaintiffs' Allegation of Destruction of Evidence (Attachments: #1 Exhibit A - Letter from Wells to Ekstrand)(COWAN, JAMES)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,

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Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

Civil Action Number
1:07-CV-00953

NOTICE OF DUKE UNIVERSITY’S RESPONSE TO PLAINTIFFS’
ALLEGATION OF DESTRUCTION OF EVIDENCE

Plaintiffs suggest in their Response in Opposition to
[the

Appealing]

Defendants’

Motion

to

Stay

Proceedings

[Dkt. No. 214] that Duke University destroyed evidence in
“[p]erhaps the most striking illustration of the prejudice
caused by the stay up to this point in this action” by
demolishing the house located at 610 N. Buchanan Boulevard
on 12 July 2010.

Duke University hereby responds to this

misleading characterization by stating the following:
In response to the continuing costs of maintenance and
repairs

to

the

house

at

610

N.

Buchanan

Boulevard,

and

after being notified by the City of Durham Department of
Neighborhood

Improvement

Services

in

April

2010

of

code

violations attendant to the disrepair of the house, on 7
May

2010

the

undersigned

counsel

for

Duke

University

notified all parties in the instant matter, as well as in
the Evans and Carrington litigations, that Duke University
intended to demolish the house located at 610 N. Buchanan
Boulevard
invited

shortly
all

after

parties

30

to

June

view

2010.
the

Duke

house,

University

inspect

and

photograph it, or otherwise preserve evidence in a manner
of their choosing.

Based on the schedules of those who

responded, access to the house was made available on 14
June

2010.

Plaintiffs’

legal

objections to the demolition.
the

parties,

including

counsel

did

not

file

any

Indeed, representatives for

attorney

Robert

Ekstrand,

availed

themselves of the invitation of Duke University and took
photographs, measurements, professional videography, and/or
architectural “as built” drawings of the house.
In a 16 June 2010 letter from Dixie T. Wells to Robert
Ekstrand,

attached

hereto

as

Exhibit

A,

Duke

University

confirmed that it provided all parties, including counsel
for Plaintiffs, with an opportunity to preserve evidence of
the

house

and

the

parties

did,

2

in

fact,

inspect

and

preserve

such

evidence

in

manners

of

their

choosing.

Thereafter, the demolition took place as planned on 12 July
2010.
Plaintiffs’ motion to oppose a stay of proceedings in
order to preserve evidence is misleading to the extent it
relies on the demolition of the 610 N. Buchanan Boulevard
house as a basis.

Duke University continues to diligently

follow its legal obligations to preserve relevant evidence
in this case.
This the 26th day of May 2011.

/s/ J. Donald Cowan, Jr.
J. Donald Cowan, Jr.
N.C. State Bar No. 0968
[e-mail]
Dixie T. Wells
N.C. State Bar No. 26816
[e-mail]
Ellis & Winters LLP
333 N. Greene Street, Suite 200
Greensboro, North Carolina 27401
Telephone: [phone]
Facsimile: [phone]
Attorneys
University

3

for

Defendant

Duke

CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2011, I electronically
filed the Notice Of Duke University’s Response To
Plaintiffs’ Allegation Of Destruction Of Evidence with the
Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all counsel of record and to
Mr. Linwood Wilson, who is also registered to use the
CM/ECF system.
This 26th day of May, 2011.

/s/ J. Donald Cowan, Jr.
J. Donald Cowan, Jr.
N.C. State Bar No. 0968
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene Street, Suite 200
Greensboro, North Carolina 27401
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Duke
University

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