MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 231

Rule 26(f) Report (Individual). by ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH.(ELLIS, RICHARD)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.

Rule 26(f) Report of the Duke
Defendants

DUKE UNIVERSITY, et al.,
Defendants.

1.

Pursuant to Fed. R. Civ. P. 26(f) and LR16.1(b), a meeting was held by telephone
on July 15, 2011. Because of the substantial overlap in the above-captioned case
and in Carrington, et al. v. Duke University, et al., No. 1:08-CV-00119, the
meeting was attended by attorneys representing the parties in both of the cases and
the conference was intended to address the discovery schedule for both cases.1
Participating in the telephone meeting were Robert Ekstrand and Stefanie Sparks
of Ekstrand & Ekstrand for the McFadyen Plaintiffs; David Thompson, Nicole
Moss, and Pete Patterson of Cooper & Kirk for the Carrington Plaintiffs; and
Richard Ellis and Dixie Wells of Ellis & Winters LLP for Defendants Duke
University, Matthew Drummond, Aaron Graves, Robert Dean, and Gary N. Smith
1

The Duke Defendants are filing simultaneously herewith a Motion to
Consolidate Discovery in the McFadyen and Carrington cases. The arguments for
consolidation are contained in Paragraph 3(a) below, and in the brief in support of the
Motion to Consolidate Discovery.

(“Duke Defendants”). Although discovery is only proceeding with respect to the
aforementioned parties, attorneys for other parties in the case were also present on
the telephone. These attorneys were Dan McLamb of Yates, McLamb & Weyher
for Defendants Duke University Health Care System Inc. and Tara Levicy; Reggie
Gillespie of Faison & Gillespie for Defendant City of Durham; and Robert King of
Brooks Pierce McLendon Humphrey & Leonard LLP for Defendants DNA
Security Inc. and Richard Clark.2
2.

Pre-Discovery Disclosures. The parties have agreed to exchange by August 12,
2011, the information required by Rule 26(a)(1) of the Federal Rules of Civil
Procedure. Consistent with the Court’s Order of June 9, 2011 [DE 218] in the
McFadyen case, such disclosures shall be limited to information relevant to
Counts 21 and 24 of the Second Amended Complaint in the McFadyen case.
Consistent with the Court’s Order of June 9, 2011 [DE 192] in the Carrington
case, such disclosures shall be limited to information relevant to Counts 8, 11, and
19 of the First Amended Complaint in the Carrington case.

3.

Discovery Plan. The undersigned parties propose to the Court the following
discovery plan:
a.

Because there is substantial overlap in the discovery that the parties
contemplate in McFadyen and Carrington, the Duke Defendants seek to
consolidate discovery in these two cases. Furthermore, the consolidation

2

DNA Security, Inc. and Richard Clark are defendants only in the McFadyen

case.
2

will greatly enhance judicial efficiency by ensuring that any discovery
motions brought before the Court are resolved in both cases simultaneously
without any concern for inconsistent rulings. Finally, consolidation would
minimize the burden and expense for the parties and third-party witnesses
by avoiding multiple depositions and discovery requests. The Duke
Defendants are filing a Motion to Consolidate Discovery and brief in
support of same (collectively, the “Consolidation Motion”)
contemporaneously with this Report. The Duke Defendants do not believe,
however, that the trials in the two cases should be consolidated.
b.

Pursuant to this Court’s Order of June 9, 2011 [DE 218], all proceedings in
this case with respect to Counts 1, 2, 5, 12, 13, 14, 18, 25, 26, 32, 35 and 41
of the Second Amended Complaint, including discovery, are stayed
pending the resolution of the interlocutory appeal in this case. Pursuant to
that same Order, discovery is proceeding only with respect to Counts 21
and 24. Consistent with the limitation on discovery ordered by this Court,
the Duke Defendants contend that discovery will be needed only on the
following subjects at this stage of the litigation:3

3

If discovery is consolidated in McFadyen and Carrington, then the consolidated
discovery would proceed on the topics set forth in the Rule 26(f) Report of the Duke
Defendants filed in Carrington as well.
3

i.

COUNT TWENTY-ONE: BREACH OF CONTRACT
• The Code of Conduct, Undergraduate Policies and Resolution of
Student Conflict, and Alleged Violations of University Policy
provisions in the Bulletin of Duke University 2005-2006.
• Duke University’s disciplinary proceedings regarding Mr. Breck
Archer.
• Duke University’s disciplinary proceedings regarding Mr.
Matthew Wilson.
• The interim suspension of Mr. Ryan McFadyen.
• Communications regarding the suspensions of Mr. Archer and
Mr. Wilson and the interim suspension of Mr. McFadyen.
• Any purported damages that resulted from the allegations
included in Count Twenty-One of the Second Amended
Complaint.

ii.

COUNT TWENTY–FOUR: FRAUD
• The production of the DukeCard data to members of the Durham
Police Department on or about March 31, 2006, including the
identities of individuals who were aware of this production of
data.
• The communications between and among employees of Duke
University, members of the Durham Police Department, and
members of the Durham County District Attorney’s Office
regarding the production of DukeCard data.
• The communications between and among employees of Duke
University, the members of the 2005-2006 Duke University
men’s lacrosse team, and agents of those team members
regarding the subpoena that was issued on May 31, 2006, that
ordered production of “Key card access used by [an] attached list
of Duke University Students from 8:00 am March 13, 2006 –
8:00 am March 14, 2006.”

4

• Communications between and among the members of the 20052006 Duke University men’s lacrosse team and anyone else
regarding the DukeCard data that was produced to members of
the Durham Police Department on or about March 31, 2006, the
need for DukeCard data as it related to the ongoing investigation
into the allegations of a sexual assault occurring at 610 N.
Buchanan Boulevard in Durham on or about March 13, 2006,
and the subpoena that was issued on May 31, 2006, that ordered
production of “Key card access used by [an] attached list of Duke
University Students from 8:00 am March 13, 2006 – 8:00 am
March 14, 2006.”
• Any purported damages that resulted from the allegations
included in Count Twenty-Four of the Second Amended
Complaint.
c.

Discovery shall be placed on a case-management track established in
LR26.1. The undersigned party proposes that the appropriate plan for this
case (with any stipulated modification by the parties as set out below) is
that designated in LR26.1(a) as:
Standard
Complex
X Exceptional

d.

As will be addressed later in this Report, because of the amount of
electronically stored information and because of the number of anticipated
depositions, the Duke Defendants contend that twelve months will be
needed for completion of discovery on Counts 21 and 24. Accordingly, the
Duke Defendants propose that all discovery relating to Counts 21 and 24 be
completed by August 31, 2012.

5

e.

Stipulated modifications of the case management track include:
(1)

Discovery, including depositions, shall be limited to discovery
regarding any nonprivileged matter that is relevant to the Plaintiffs’
claims in Counts 21 and 24 of the Second Amended Complaint in
the McFadyen case and the Duke Defendants’ defenses to those
same Counts. If discovery in the McFadyen and Carrington cases is
consolidated, then discovery would also proceed regarding any
nonprivileged matter that is relevant to the Plaintiffs’ claims in
Counts 8, 11, and 19 of the First Amended Complaint in the
Carrington case and the Duke Defendants’ defenses to those same
counts. Accordingly, the Duke Defendants contemplate that if
and/or when discovery proceeds on the remaining claims that are
currently stayed pursuant to this Court’s Order of June 9, 2011,
additional discovery may be needed from both the Plaintiffs and the
Duke Defendants on the remaining counts. Such discovery may
include additional (but not duplicative) document requests,
additional (but not duplicative) interrogatories, additional (but not
duplicative) requests for admissions, and additional (but not
duplicative) depositions (including, in some cases, of witnesses who
were previously deposed on issues relating to Counts 21 and 24).

6

(2)

If discovery is consolidated, the McFadyen and Carrington Plaintiffs
collectively should be able to depose each of the Duke Defendants
named in Counts 21 and 24 of the McFadyen Second Amended
Complaint and in Counts 8, 11, and 19 of the Carrington First
Amended Complaint, such that each Duke Defendant sits for only
one deposition regarding McFadyen Counts 21 and 24 and
Carrington Counts 8, 11, and 19. In addition, the McFadyen and
Carrington Plaintiffs collectively should be able to depose each
expert witness identified by any of the Duke Defendants, such that
each expert witness sits for only one deposition regarding McFadyen
Counts 21 and/or 24 and/or Carrington Counts 8, 11, and/or 19. The
Duke Defendants contend that the McFadyen and Carrington
Plaintiffs collectively should be allowed a total of thirty depositions
in addition to the depositions of the named Duke Defendants and any
expert witnesses identified by any of the Duke Defendants. Should
discovery be consolidated in the McFadyen and Carrington cases,
discovery will proceed on a total of five claims, two of which are
virtually identical. Because the factual basis of these claims is
limited, thirty depositions beyond the named defendants and expert
witnesses should be sufficient for the McFadyen and Carrington
Plaintiffs and is consistent with the Court’s Order limiting discovery

7

strictly to the claims that are going forward. If, after they have taken
thirty depositions above and beyond the named Duke Defendants,
Plaintiffs determine that additional depositions are necessary, then
the parties should confer in good faith regarding the need for
additional depositions. If the parties are unable to reach an
agreement as to additional depositions, then the Plaintiffs may seek
leave of Court to conduct additional depositions.
(3)

If discovery is not consolidated, then the McFadyen Plaintiffs should
be allowed to depose each of the Duke Defendants named in Counts
21 and 24, each expert witness identified by the Duke Defendants,
and a total of twenty additional witnesses. Similarly, if Plaintiffs
determine that additional depositions are necessary, then the parties
should confer in good faith regarding the need for additional
depositions. If the parties are unable to reach an agreement as to
additional depositions, then the Plaintiffs may seek leave of Court to
conduct additional depositions.

(4)

If discovery is consolidated, the Duke Defendants collectively
should be able to depose each of the McFadyen Plaintiffs and each
of the Carrington Plaintiffs, such that each McFadyen Plaintiff sits
for only one deposition and each Carrington Plaintiff sits for only
one deposition. In addition, the Duke Defendants collectively

8

should be able to depose each expert witness identified by any of the
McFadyen or Carrington, such that each expert witness sits for only
one deposition regarding McFadyen Counts 21 and/or 24 and/or
Carrington Counts 8, 11, and/or 19. In addition, because each
Plaintiff’s actions, knowledge, and specific damages purportedly
suffered are different, discovery is needed on each particular
Plaintiff. The Duke Defendants anticipate that as many as 82
additional depositions will be needed. Although this number
initially seems large, in fact, it would allow only an average of two
additional depositions for each of the McFadyen Plaintiffs bringing
Counts 21 and 24 and each of the Carrington Plaintiffs bringing
Counts 8, 11, and 19.4 This number is, therefore, reasonable given
the number of Plaintiffs, the scope of the damages allegations and
the need for the Duke Defendants to defend against each Plaintiff. If
the Duke Defendants determine that additional depositions are
necessary, then the parties should confer in good faith regarding the
need for these additional depositions. If the parties are unable to
reach an agreement as to additional depositions, then the Duke

4

As an example, these additional depositions may be necessary to probe
allegations such as Plaintiffs’ claims that they were denied employment opportunities,
something that is unique to each Plaintiff.
9

Defendants may seek leave of Court to conduct additional
depositions.
(5)

If discovery is not consolidated, then the Duke Defendants should be
allowed to depose each McFadyen Plaintiff, each expert witness
identified by any one or more of the Plaintiffs, and, for the reasons
articulated above, a total of 6 additional witnesses (two additional
witnesses for each of the 3 plaintiffs in this case). Similarly, if the
Duke Defendants determine that additional depositions are
necessary, then the parties should confer in good faith regarding the
need for additional depositions. If the parties are unable to reach an
agreement as to additional depositions, then the Duke Defendants
may seek leave of Court to conduct additional depositions.

(6)

Depositions of all witnesses should be limited to seven hours as set
forth in Rule 30(d)(2), unless the parties agree otherwise or the
Court allows additional time.

(7)

For purposes of determining how many depositions have been taken,
each Rule 30(b)(6) deposition should be counted as a single
deposition. Further, the seven hour limit should apply to any Rule
30(b)(6) deposition, without regard to the number of witnesses who
are designated to testify on behalf of the corporation.

10

(8)

If discovery is consolidated, then the Duke Defendants propose the
following plan for written discovery. The McFadyen and Carrington
Plaintiffs, whether acting individually or collectively, should be
allowed to serve a maximum of thirty interrogatories and thirty
requests for admissions, including subparts, upon each Duke
Defendant, such that no more than thirty interrogatories and thirty
requests for admissions are served on any single Duke Defendant.
(For example, if plaintiff A submits 25 interrogatories to a particular
defendant, neither plaintiff A nor any other individual plaintiff nor
any group of plaintiffs may submit more that five additional
interrogatories to that particular defendant.) In turn, the Duke
Defendants, whether acting individually or collectively, should be
allowed to serve a maximum of thirty interrogatories and requests
for admissions, including subparts, upon each Plaintiff, such that no
more than thirty interrogatories and thirty requests for admissions
are served on any single Plaintiff.5 This number is proposed because

5

The Duke Defendants proposed several different alternatives during the Rule
26(f) Conference and the subsequent discussions, any one of which would meet the needs
of the Duke Defendants. In addition to the approach described in the text, another
approach is that the Duke Defendants serve a single set of 20 interrogatories and a single
set of 20 requests for admission on all Plaintiffs, and then serve an additional 10
interrogatories and an additional 10 requests for admission on each Plaintiff. A third
approach that the Duke Defendants proposed is to develop a Plaintiff Fact Sheet (with a
set of standard questions), and then serve 10 interrogatories on each Plaintiff and 30
requests for admission on each Plaintiff.
11

each Plaintiff’s actions, knowledge, and specific damages
purportedly suffered are different, and, accordingly, the Duke
Defendants need to make inquiries of each Plaintiff. Should more
than thirty interrogatories or more than thirty requests for admissions
be served upon a party, that party should only be required to answer
the first thirty that are served, as evidenced by the time-stamp of the
transmission.
f.

During the Rule 26(f) Conference, both the McFadyen and Carrington
Plaintiffs contended that expert discovery should be delayed until after fact
discovery is conducted on all of the claims that survived the Court’s Order
of March 31, 2011, on the motions to dismiss. The Duke Defendants
contend that the Court has ordered discovery to go forward on McFadyen
Counts 21 and 24 and Carrington Counts 8, 11, and 19, and expert
discovery is an important part of discovery. Accordingly, expert discovery
should not be deferred. To this end, the Duke Defendants propose that
reports from retained experts under Rule 26(a)(2) should be due during the
discovery period set forth in this Rule 26(f) report:
(1)

From Plaintiffs by April 1, 2012. At the same time that the reports
are produced, Plaintiffs should provide at least three alternative dates
on which each retained expert may be deposed. Such dates should
be within the period allowed for the depositions of Plaintiffs’

12

retained experts, as set forth in Paragraph 5(d) herein. The Duke
Defendants should in turn notify the Plaintiffs of the dates selected
for each deposition within ten days.
(2)

From Duke Defendants by June 15, 2012. At the same time that the
reports are produced, the Duke Defendants should provide at least
three alternative dates on which each retained expert may be
deposed. Such dates should be within the period allowed for the
depositions of the Duke Defendants’ retained experts, as set forth in
Paragraph 5(d) herein. The Plaintiffs should notify the Duke
Defendants of the dates selected for each deposition within ten days.

g.

During the Rule 26(f) Conference, both the McFadyen and Carrington
Plaintiffs contended that 45 days before the close of fact discovery, the
parties should certify that they have produced all supplementations
currently available to them. The Duke Defendants are agreeable to such a
requirement, provided that, consistent with Rule 26(e), supplementations
are made on an ongoing basis. As a guiding principle, the Duke
Defendants contend that supplementations under Rule 26(e) should be due
within thirty days after a party discovers new information that must be
disclosed, provided, however, that during the final thirty days of discovery,
all supplementations will occur as soon as practicable so as not to prejudice
the other party.

13

h.

Discovery of Electronic Stored Information (“ESI”). After learning of
potential litigation against Duke University arising out of the indictment of
three members of the Duke men’s lacrosse team, Duke University began its
efforts to preserve electronic data on April 20, 2007. The preservation
efforts have continued through the present with considerable expense to
Duke University. This expense has been exacerbated because the parties
have not been able to agree on a data collection end-date. The Duke
Defendants believe that the following plan is consistent with Rule 26(b)(2)
of the Federal Rules of Civil Procedure and avoids discovery that is
“unreasonably cumulative or duplicative.” Further, this plan is proposed
taking into consideration whether the “burden or expense of the proposed
discovery outweighs its likely benefit, taking into account the needs of the
case, the amount in controversy, the parties’ resources, the importance of
the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(c)(3). In order
to reasonably mitigate costs while still complying with discovery mandates,
the Duke Defendants propose that the following actions be taken:6
(1)

Relevant information and custodians. The Duke Defendants propose
to limit the initial review of data to a specified group of 17

6

The parties are continuing to discuss the most effective way to manage electronic
data discovery.

14

custodians (23 custodians if discovery in the McFadyen and
Carrington cases is consolidated). Seventeen custodians is a
significant number of custodians for the two narrow claims going
forward as to the Duke Defendants, and the Duke Defendants
believe that these custodians will yield the most substantial and
complete data in accordance with Plaintiffs’ discovery requests,
without being “unreasonably cumulative or duplicative.” 7 Further,
going beyond this list of 17 custodians imposes both a “burden” and
“expense” that “outweighs” the “likely benefit” to be gained from

7

This approach, including the selection of the specific custodians whose data
should be reviewed, is consistent with the approaches taken by other courts. When
dealing with ESI, courts have generally deferred to the producing party to identify the
custodians likely to possess responsive documents. See generally Garcia v. Tyson Foods,
Inc., No. 06-2198-JWL-DJW, 2010 WL 5392660, at *2-4 (D. Kan. Dec. 21, 2010).
Where such a determination is contested, however, it is quite common for courts to limit
the number of custodians from which a party must produce documents. See, e.g.,
Martinez-Hernandez v. Butterball, LLC, No. 5:07-cv-174-H, 2010 WL 2089251, at *4-5
(E.D.N.C. May 21, 2010) (finding plaintiff’s request that defendant “run sixty-one
numbered queries, most of which include multiple search terms, for thirty-plus
custodians, encompassing numerous servers . . . unreasonable and unduly burdensome”
and specifically eliminating custodians due to their limited involvement and the
unlikelihood that they would possess relevant documents); In re Fannie Mae Sec. Litig.,
552 F.3d 814, 820 (D.D.C. 2009). Courts tend to limit the required custodians to those
“likely to possess responsive documents.” See, e.g., CDW LLC v. NETech Corp., No.
1:10–cv–00530–SEB–DML, 2011 WL 1743749, at *2 (S.D. Ind. May 5, 2011).

15

searching the electronic records of additional custodians.8 Once the
data of the custodians has been reviewed for relevance and privilege
as set forth below, the Duke Defendants will produce the data that is
responsive to the requests made by the Plaintiffs. If after that
review, Plaintiffs affirmatively show that the data from additional
custodians should be produced in order to comply with the discovery
that the Court has ordered, the Duke Defendants could review those
additional custodians at that time.

8

Courts have been particularly likely to limit the number of custodians where a
party can demonstrate that production of documents without such a restriction would be
unjustifiably costly, as it would be in this case. See, e.g., Thermal Design, Inc. v.
Guardian Bldg. Prods., Inc., No. 08–C–828, 2011 WL 1527025, at *1 (E.D. Wis. Apr. 20,
2011) (holding that a search of “all archived e-mail accounts and shared network drives,
without any restriction as to custodian or individual” that would take “several months”
and cost “an additional $1.9 million dollars” not including an additional thirteen weeks
and $600,000 to review “is not reasonably accessible”). The court in Thermal Design
explained that “even if the information sought is relevant or reasonably calculated to lead
to the discovery of admissible evidence, [the requesting party] doesn’t explain why the
extensive amount of information it seeks is of such importance that it justifies imposing
an extreme burden on the [defendants]. Fed. R. Civ. P. 26(b)(2)(C)(iii) (factors include
‘the needs of the case, the amount in controversy, the parties’ resources, the importance
of the issues at stake in the action, and the importance of the discovery in resolving the
issues’). Courts should not countenance fishing expeditions simply because the party
resisting discovery can afford to comply.” Id.
The onus should be on the Plaintiffs to put forward evidence that additional
custodians were involved in the relevant events and would likely possess responsive
documents and that this benefit would outweigh the additional costs. See, e.g., Harris v.
Koenig, 271 F.R.D. 356, 367 (D.D.C. 2010). As discussed herein, limiting the initial
productions does not prevent the Plaintiffs from making additional requests in the future
if a need should arise.

16

(2)

Preservation end date for Duke Defendants. The Duke Defendants
propose an end-date of August 31, 2007 for preservation of the Duke
Defendants’ data. The burden and expense of examining data
created after August 31, 2007, in general, likely outweighs any
benefit in that there is little likelihood that any relevant information
regarding McFadyen Counts 21 and 24 or Carrington Counts 8, 11,
and 19 was created after August 2007.9 That said, the Duke
Defendants would intend to question relevant witnesses as to
whether any relevant documents were created after August 31, 2007.
In the event that relevant documents exist, then the Duke Defendants
would undertake to collect and review those documents on a caseby-case basis.

(3)

Preservation end date for Plaintiffs. With respect to the Plaintiffs,
because the Plaintiffs contend that their damages are ongoing and
continue to the present, there should be no such end-date for
preservation and review of the Plaintiffs’ data. So long as the claims

9

Count 24 in McFadyen and Count 8 in Carrington focus on specific events, namely
the writing of letters, that occurred in May of 2006 and what was known before those
letters were written. Count 21 in McFadyen deals with claims that suspensions – all of
which occurred during the summer of 2006 or before – were breaches of contract. Count
11 in Carrington focuses on conversations and meetings that took place in March (and
possibly April) of 2006. Count 19 in Carrington, for negligent supervision, necessarily
encompasses the events alleged in Counts 8 and 11, and the knowledge of Duke
University before those events. Accordingly, August 31, 2007 is a reasonable end-date
for the review of data for any of the custodians identified by the Duke Defendants.

17

for damages continue, the need for documents that support or rebut
those claims exists.
(4)

Search Methodology. The Duke Defendants propose that they work
together with the Plaintiffs to develop a reasonable set of “keyword”
search terms to be run against the preserved data for the 17
custodians (23 custodians if the cases are consolidated for
discovery).10 This subset of documents will then be reviewed by the
Duke Defendants for responsiveness and privilege, and responsive,
non-privileged documents shall be produced. Because of the type of
damages sought by the Plaintiffs and the multitude of information
that would be relevant to those damages claims, a keyword search
cannot be used to limit the volume of the Plaintiffs’ data that is
reviewed. Accordingly, the Plaintiffs should review their entire set
of data for responsiveness, relevance, and privilege, and only
responsive, relevant, non-privileged documents should be produced.

10

“The use of key words has been endorsed as a search method for reducing the need
for human review of large volumes of ESI to be followed by a cooperative and informed
process [that includes] sampling and other quality assurance techniques.” Romero v.
Allstate Ins. Co., 271 F.R.D. 96, 109 (E.D. Pa. 2010). Because of the significant volume
of ESI associated with these 17 custodians, if a keyword search were not used, and the
ESI was to be manually searched, the time required to conduct such a search would likely
result in the “burden of the proposed discovery outweigh[ing] its likely benefit.”
Ulyanenko v. Metro. Life Ins. Co., No. 09 Civ. 3513, 2011 WL 2183172, at *5 (S.D.N.Y.
June 3, 2011).
18

(5)

Production of ESI and Documents. The Duke Defendants propose
rolling productions from both parties. The Duke Defendants also
propose that both sides produce electronic files and documents as
outlined below:
(a)

Electronic Files should be produced in Native/near-Native
format. This is the least expensive way to produce ESI, and it
can be then be loaded into almost any litigation support
database.
•
•

Attachments and loose files should be produced in
native format.

•

Each native /near-native file name should bear a
document identifier similar to a Bates number.
When a protective order is entered in this case,
then any document that is marked as confidential
pursuant to that order should also have some
indication of that confidentiality designation in the
file name.

•

If redaction is required, then the document should
be produced as a .tiff file.

•

(b)

E-mail files should be produced in a near native
format (HTML or MSG).

Load file(s) for native/near-native, images,
extracted text, and other files should be produced
in Concordance format.

Paper Documents should be produced in image format.
• All paper documents should be scanned to image
format (group IV single page tiff).
• Load file(s) for image files should be produced in
Concordance format.

(c)

Electronic data should be produced using hard drives which
will be shipped to the party requesting the data.

19

(6)

Cost allocation. When requests for production of ESI that are not
reasonably accessible without undue burden or cost are served, the
party asked to produce the ESI should be allowed to move the Court
for an order that requires the requesting party to pay the reasonable
expenses of producing the ESI.

(7)

Privileged and protected ESI. The parties reserve the right to
withhold any relevant ESI subject to a common law or statutory
privilege.

4.

Mediation. Mediation should be conducted midway to late during this discovery
period, with the exact date to be set by the mediator after consultation with the
parties. The parties have discussed possible mediators but have not agreed on a
mediator. The parties are continuing to confer about a possible mediator and hope
to reach agreement before the pretrial conference scheduled in this case.

5.

Preliminary Deposition Schedule. Preliminarily, the Duke Defendants propose the
following schedule for depositions:
a.

Fact discovery shall be completed by March 31, 2012. The Duke
Defendants contend that fact discovery should be completed before
beginning expert discovery.

b.

Because of the number of depositions that will be needed in this matter,
regardless of whether discovery is consolidated in McFadyen and
Carrington, and the challenges associated with scheduling those depositions

20

within the discovery period, the Duke Defendants have proposed to the
Plaintiffs that depositions of all of the parties take place in the Middle
District of North Carolina, except for expert depositions. The McFadyen
Plaintiffs indicated that they would agree with this provision. The
Carrington Plaintiffs indicated that they would not agree with this
provision. The Duke Defendants contend that for these reasons, the Court
should order that depositions of parties shall occur in the Middle District of
North Carolina.11
c.

Because of the number of anticipated depositions, the Duke Defendants
propose that a plan be established in advance to allow for the orderly
progression of discovery. To this end, the Duke Defendants propose that
two weeks of each month be set aside for depositions in this case. Plaintiffs
should notice depositions for the first full week of the month; the Duke

11

“[C]ourts ordinarily presume that a plaintiff may be deposed in the judicial
district where the action was brought, inasmuch as the plaintiff, in selecting the forum,
has effectively consented to participation in legal proceedings there.” In re Outsidewall
Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010); see also Scooter Store, Inc. v.
Spinlife.com, LLC, No. 2:10–cv–18, 2011 WL 2118765, at *2 (S.D. Ohio May 25, 2011)
(the general rule is “that the proper location of a plaintiff’s deposition, including that of a
corporate officer if the plaintiff is a corporation, is in the forum where the litigation is
pending”). Generally, a plaintiff must “bear any reasonable burdens of inconvenience
that the action represents.” Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363
(D. Conn. 2005) (quoting Fed. Deposit Ins. Co. v. La Antillana, S.A., No. 88–CV–2670,
1990 WL 155727, at *4 (S.D.N.Y. Oct.5, 1990)). While it may be more convenient for a
plaintiff to be deposed in his state of residence, that does not mean it is unduly
burdensome for him to travel to his selected forum state to be deposed. See Scooter
Store, 2011 WL 2118765, at *4.

21

Defendants should notice depositions for the third full week of the month.
Such a procedure would minimize the need to consult with counsel about
their schedules, and counsel could then simply focus on the schedules of
the deponents.
d.

Because of the number of anticipated depositions, as many as three
depositions should be allowed to proceed simultaneously. Unless the
parties agree otherwise, no more than three depositions should be taken at
the same time.

e.

The Duke Defendants should depose the experts retained by the Plaintiffs
by June 30, 2012. The Plaintiffs should depose the experts retained by the
Duke Defendants on or before the close of discovery on August 31, 2012.

6.

Other items.
a.

Plaintiff(s) should be allowed until October 31, 2011, to request leave to
join additional parties or amend pleadings. The Duke Defendant(s),
likewise, should be allowed until October 31, 2011, to request leave to join
additional parties or amend pleadings. After these dates, the Court should
consider, inter alia, whether the granting of leave would delay trial, as well
as the dictates of Rule 16. During the Rule 26(f) Conference, the
McFadyen and Carrington Plaintiffs both contended that this date should be
60-90 days before the end of the discovery period. Because the original
complaint in the McFadyen case was filed over three years ago, has already

22

been amended twice, and has been the subject of extensive motions to
dismiss, the Duke Defendants could not agree to a presumptive deadline for
amending the complaint and adding parties that is so late in the discovery
period. Under Rule 16(b), if good cause is shown, a court could allow the
amendment and/or the addition of parties at any point. The Duke
Defendants cannot agree that amendments should be permitted and parties
should be added after 6-9 months of discovery without this showing of
good cause.12
b.

By the written consent of counsel for the Plaintiffs and the Duke
Defendants, the parties should be able to agree to modify this Rule 26(f)
Report without the consent of the Court, except that the close of discovery
should not be changed by consent of the parties without the consent of the
Court.

12

The Duke Defendants seek to avoid a situation such as that once faced by the
defendants in Raleigh Flex Owner I, LLC v. Marketsmart Interactive, Inc., No. 1:09-CV00699, 2010 WL 3211064 (M.D.N.C. Aug. 11, 2010). In Raleigh Flex, the plaintiffs
sought to amend the pleadings late in the discovery period, and the defendants opposed
the motion. The court said, “Defendants’ argument in this regard ignores the fact that the
Scheduling Order to which they agreed permitted requests for such amendments up to the
day before the planned close of general discovery. At the time of the establishment of the
Scheduling Order, Defendants could have sought an earlier deadline for such proposed
amendments, after which Plaintiff would have had to meet the more demanding ‘good
cause’ standard in Federal Rule of Civil Procedure 16(b), rather than only the more
‘liberal’ test of Rule 15(a). . . . In fact, most proposed scheduling orders the undersigned
Magistrate Judge reviews set the deadline for amendment of pleadings and addition of
parties well before the date for the close of discovery.” Id. at *3 (emphasis added).
23

c.

The Duke Defendants anticipate that a protective order will be required to
protect the privacy of personal information of individuals and confidential
business or financial information that may be subject to disclosure or
discovery.

d.

The parties have discussed special procedures for managing this case,
including reference of the case to a Magistrate Judge on consent of the
parties under 28 U.S.C. §§636(c), or appointment of a master: The parties
do not consent to either procedure.

e.

The Duke Defendants anticipate that trial of all of the counts in McFadyen
that survive this Court’s Order of March 31, 2011, is expected to take at
least 20 days. A jury trial has been demanded. For efficiency, the Duke
Defendants contend that trial should not be set in McFadyen until the Stay
entered by this Court on June 9, 2011, is lifted such that all counts at issue
in McFadyen can be tried in a single trial.

24

This the 1st day of August.
/s/ Richard W. Ellis
Richard W. Ellis
N.C. State Bar No. 1335
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Counsel for DukeDefendants

25

CERTIFICATE OF SERVICE
I hereby certify that on August 1, 2011, I electronically filed the foregoing Rule
26(f) Report of the Duke Defendants 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 1st day of August, 2011.
/s/ Richard W. Ellis
Richard W. Ellis
N.C. State Bar No. 1335
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants