MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 237

RESPONSE filed by Defendants ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH re #236 Request filed by RICHARD CLARK, BRIAN MEEHAN, PHD, DNA SECURITY, INC. filed 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.
DUKE UNIVERSITY, et al.,
Defendants.

DUKE DEFENDANTS’ RESPONSE
TO THE REQUEST OF
DEFENDANTS RICHARD CLARK,
DNA SECURITY, INC.,
AND BRIAN MEEHAN TO
INCLUDE PROVISIONS
IN SCHEDULING ORDER

Defendants Duke University, Matthew Drummond, Aaron Graves, Robert Dean,
and Gary N. Smith (the “Duke Defendants”), by and through their undersigned counsel,
respond to the Request of Defendants Richard Clark, DNA Security, Inc. and Brian
Meehan (the “DNA Defendants”) [Dkt. No. 236] as follows:
The DNA Defendants seek to include various provisions in this Court’s
Scheduling Order. As they are currently worded, these provisions are overly broad and
inject considerable confusion into the discovery process in this already complex case.
The confusion is even greater when this case is considered along with the case of
Carrington et al. v. Duke University, et al., Case No. 2008 CV 119.1

1

The Duke Defendants have filed a motion [Dkt. No. 232] seeking to consolidate
discovery in the Carrington and McFadyen cases. The Carrington Plaintiffs oppose that
motion and have instead proposed a system of cross-noticing depositions. (Carrington,
Dkt. No. 214, ¶ 2(e).) The McFadyen Plaintiffs also appear to endorse a system of crossnoticing depositions. (Dkt. No. 234 at 5.) Under either proposal, it is likely that at least
some depositions would apply to both cases.

I.

Discovery Should Not Be Restricted “Solely” on the Basis that It Relates
“Directly” to a Count Other than Count 21 or 24. (Paragraphs 1 & 2 of the
Request.)
The DNA Defendants have suggested a provision that “[n]o deposition questions

may be propounded that directly relate to the issues raised in any Count other than
Counts 21 and 24.” (Dkt. No. 236, ¶ 2.)

While the intent of that request was likely to

limit questions to issues related to Counts 21 and 24, the request is broader than that.
Legitimate questions may well “directly relate” to Counts other than Counts 21 and 24,
but if those questions also relate to Counts 21 and 24, then they should be permitted.
(Similarly, if depositions are combined in the Carrington and McFadyen cases, questions
that relate to Counts 8, 11, and 19 in Carrington should be permitted.) Stated differently,
a question regarding discovery on Counts 21 or 24 should be allowed to go forward.
Deposition questions that “solely” relate to issues raised in Counts other than Counts 21
and 24 (and Counts 8, 11, and 19 in Carrington) can be prohibited. However, deposition
questions that “directly relate” to Counts 21 and 24, but perhaps also to some other
Count, should not necessarily be prohibited. To be sure, there may be issues that apply to
more than just Counts 21 and 24. To forestall discovery that might apply to some other
Count, even if that is not the thrust of the question, would stymie discovery on the
presently discoverable Counts. It would tie the hands of counsel during discovery. That
is not the purpose of discovery.
Similarly, written discovery should be allowed on any issue that is raised in
Counts 21 and 24, without regard to whether that issue is also raised in Counts other than

2

Count 21 and 24. Indeed, written discovery is frequently of a background nature and
would apply as much to one count as to another; would discovery of such background
information be prohibited?
II.

The Use of Depositions Should Be Controlled by the Federal Rules of Civil
Procedure. (Paragraph 3 of the Request.)
The DNA Defendants also have suggested that “depositions taken during this

phase of discovery may not be used at a hearing or trial against any party, other than
Plaintiffs, Duke University, and Defendants Smith, Graves, Dean, and Drummond, even
if that party was present or represented at the deposition or had reasonable notice of it.”
(Dkt. No. 236, ¶ 3.)
Because of the many common issues in the McFadyen and Carrington cases, some
(if not all) depositions would likely proceed for both cases. The provisions contained in
Paragraph 3 of the Request are not compatible with such consolidated discovery (whether
truly consolidated or simply noticed in both cases). The clearest example of that
incompatibility is that if Paragraph 3 were adopted, then depositions could not be used
against the Carrington Plaintiffs, even where the depositions were consolidated.
Further, the Duke Defendants respectfully suggest that the Order sought by the
DNA Defendants is in conflict with the Federal Rules of Civil Procedure. Rule 32(a) of
the Federal Rules of Civil Procedure provides that “all or part of a deposition may be
used against a party on these conditions: (A) the party was present or represented at the
taking of the deposition or had reasonable notice of it.” Fed. R. Civ. P. 32(a). The DNA
Defendants ask this Court to allow all of the parties to attend depositions (and participate)
3

[Dkt. No. 236, ¶ 5], but not have the deposition used against any party other than (the
McFadyen) Plaintiffs, Duke University, and Defendants Smith, Graves, Dean, and
Drummond, even if that party was present or represented at the deposition or had
reasonable notice of it. As the Duke Defendants understand the Court’s June 9, 2011
ruling, discovery is proceeding on Claims 21 and 24. If notice of discovery is provided,
discovery developed during the investigation of these claims should be available for use
as permitted under the Federal Rules of Civil Procedure.
III.

The Duke Defendants Agree with the Remaining Paragraphs of the Request.
(Paragraphs 4, 6, and 7.)
The Duke Defendants agree that all discovery requests should be served on all

parties. The Duke Defendants also agree that all discovery responses should be served on
all parties, provided that those parties are bound by any applicable protective orders
entered in either this case or the Carrington case.
Conclusion
The Court’s Order of June 9, 2011 [Dkt. No. 218] provided that discovery should
proceed on Counts 21 and 24 of the McFadyen case. Those parties who are not
defendants to Counts 21 and 24 of the McFadyen case should not be overly burdened by
the discovery that is going forward. However, the Duke Defendants should be allowed to
conduct whatever discovery is necessary as relates to Counts 21 and 24 (and as relates to
Counts 8, 11, and 19 in Carrington) without regard to whether that discovery is also
relevant to other Counts.

4

This the 16th 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]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants

5

CERTIFICATE OF SERVICE
I hereby certify that on August 16, 2011, I electronically filed the foregoing 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 16th 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

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.
DUKE UNIVERSITY, et al.,
Defendants.

DUKE DEFENDANTS’ RESPONSE
TO THE REQUEST OF
DEFENDANTS RICHARD CLARK,
DNA SECURITY, INC.,
AND BRIAN MEEHAN TO
INCLUDE PROVISIONS
IN SCHEDULING ORDER

Defendants Duke University, Matthew Drummond, Aaron Graves, Robert Dean,
and Gary N. Smith (the “Duke Defendants”), by and through their undersigned counsel,
respond to the Request of Defendants Richard Clark, DNA Security, Inc. and Brian
Meehan (the “DNA Defendants”) [Dkt. No. 236] as follows:
The DNA Defendants seek to include various provisions in this Court’s
Scheduling Order. As they are currently worded, these provisions are overly broad and
inject considerable confusion into the discovery process in this already complex case.
The confusion is even greater when this case is considered along with the case of
Carrington et al. v. Duke University, et al., Case No. 2008 CV 119.1

1

The Duke Defendants have filed a motion [Dkt. No. 232] seeking to consolidate
discovery in the Carrington and McFadyen cases. The Carrington Plaintiffs oppose that
motion and have instead proposed a system of cross-noticing depositions. (Carrington,
Dkt. No. 214, ¶ 2(e).) The McFadyen Plaintiffs also appear to endorse a system of crossnoticing depositions. (Dkt. No. 234 at 5.) Under either proposal, it is likely that at least
some depositions would apply to both cases.

I.

Discovery Should Not Be Restricted “Solely” on the Basis that It Relates
“Directly” to a Count Other than Count 21 or 24. (Paragraphs 1 & 2 of the
Request.)
The DNA Defendants have suggested a provision that “[n]o deposition questions

may be propounded that directly relate to the issues raised in any Count other than
Counts 21 and 24.” (Dkt. No. 236, ¶ 2.)

While the intent of that request was likely to

limit questions to issues related to Counts 21 and 24, the request is broader than that.
Legitimate questions may well “directly relate” to Counts other than Counts 21 and 24,
but if those questions also relate to Counts 21 and 24, then they should be permitted.
(Similarly, if depositions are combined in the Carrington and McFadyen cases, questions
that relate to Counts 8, 11, and 19 in Carrington should be permitted.) Stated differently,
a question regarding discovery on Counts 21 or 24 should be allowed to go forward.
Deposition questions that “solely” relate to issues raised in Counts other than Counts 21
and 24 (and Counts 8, 11, and 19 in Carrington) can be prohibited. However, deposition
questions that “directly relate” to Counts 21 and 24, but perhaps also to some other
Count, should not necessarily be prohibited. To be sure, there may be issues that apply to
more than just Counts 21 and 24. To forestall discovery that might apply to some other
Count, even if that is not the thrust of the question, would stymie discovery on the
presently discoverable Counts. It would tie the hands of counsel during discovery. That
is not the purpose of discovery.
Similarly, written discovery should be allowed on any issue that is raised in
Counts 21 and 24, without regard to whether that issue is also raised in Counts other than

2

Count 21 and 24. Indeed, written discovery is frequently of a background nature and
would apply as much to one count as to another; would discovery of such background
information be prohibited?
II.

The Use of Depositions Should Be Controlled by the Federal Rules of Civil
Procedure. (Paragraph 3 of the Request.)
The DNA Defendants also have suggested that “depositions taken during this

phase of discovery may not be used at a hearing or trial against any party, other than
Plaintiffs, Duke University, and Defendants Smith, Graves, Dean, and Drummond, even
if that party was present or represented at the deposition or had reasonable notice of it.”
(Dkt. No. 236, ¶ 3.)
Because of the many common issues in the McFadyen and Carrington cases, some
(if not all) depositions would likely proceed for both cases. The provisions contained in
Paragraph 3 of the Request are not compatible with such consolidated discovery (whether
truly consolidated or simply noticed in both cases). The clearest example of that
incompatibility is that if Paragraph 3 were adopted, then depositions could not be used
against the Carrington Plaintiffs, even where the depositions were consolidated.
Further, the Duke Defendants respectfully suggest that the Order sought by the
DNA Defendants is in conflict with the Federal Rules of Civil Procedure. Rule 32(a) of
the Federal Rules of Civil Procedure provides that “all or part of a deposition may be
used against a party on these conditions: (A) the party was present or represented at the
taking of the deposition or had reasonable notice of it.” Fed. R. Civ. P. 32(a). The DNA
Defendants ask this Court to allow all of the parties to attend depositions (and participate)
3

[Dkt. No. 236, ¶ 5], but not have the deposition used against any party other than (the
McFadyen) Plaintiffs, Duke University, and Defendants Smith, Graves, Dean, and
Drummond, even if that party was present or represented at the deposition or had
reasonable notice of it. As the Duke Defendants understand the Court’s June 9, 2011
ruling, discovery is proceeding on Claims 21 and 24. If notice of discovery is provided,
discovery developed during the investigation of these claims should be available for use
as permitted under the Federal Rules of Civil Procedure.
III.

The Duke Defendants Agree with the Remaining Paragraphs of the Request.
(Paragraphs 4, 6, and 7.)
The Duke Defendants agree that all discovery requests should be served on all

parties. The Duke Defendants also agree that all discovery responses should be served on
all parties, provided that those parties are bound by any applicable protective orders
entered in either this case or the Carrington case.
Conclusion
The Court’s Order of June 9, 2011 [Dkt. No. 218] provided that discovery should
proceed on Counts 21 and 24 of the McFadyen case. Those parties who are not
defendants to Counts 21 and 24 of the McFadyen case should not be overly burdened by
the discovery that is going forward. However, the Duke Defendants should be allowed to
conduct whatever discovery is necessary as relates to Counts 21 and 24 (and as relates to
Counts 8, 11, and 19 in Carrington) without regard to whether that discovery is also
relevant to other Counts.

4

This the 16th 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]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants

5

CERTIFICATE OF SERVICE
I hereby certify that on August 16, 2011, I electronically filed the foregoing 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 16th 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