MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 241

RESPONSE filed by Plaintiffs BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON re #236 MOTION for filed by RICHARD CLARK, BRIAN MEEHAN, PHD, DNA SECURITY, INC. filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Replies due 9/19/2011 (EKSTRAND, ROBERT)

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

1:07-CV-953

DUKE UNIVERSITY, et al.,
Defendants.

PLAINTIFFS’ RESPONSE TO DSI DEFENDANTS’
REQUEST FOR TO MODIFY THE RULE 26(f)
SCHEDULING ORDER

Plaintiffs, Ryan McFadyen, Matthew Wilson, and Breck Archer, submit this Response
to DNA Security, Inc., Richard Clark, and Brian Meehan’s (the “DSI Defendants”) Request
to Include Provisions in Scheduling Order (the “Request”) [Docket Entry 236].1 The DSI
seek seven different provisions for the Scheduling Order concerning Counts 21 and 24
against Defendants Duke University, Gary N. Smith, Aaron Graves, Robert Dean, and
Matthew Drummond (the “Duke Defendants”).
BACKGROUND
On March 31, 2011, the Court resolved all defendants’ motions to dismiss,
authorizing Plaintiffs to proceed on multiple federal and common law claims. Thereafter,

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Duke Defendants submitted also submitted a response [Docket Entry 237].

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the City Defendants2 filed Notices of Appeal to the Fourth Circuit in connection with their
immunity defenses [Docket Entries 196 and 199] and moved to stay discovery as to the City
Defendants’ during the pendency of their appeal [Docket Entries 205 and 206]. The DSI
Defendants filed a motion joining the City Defendants’ Motion to Stay Proceedings [Docket
Entry 211].

On June 9, 2011, the Court issued an order staying all proceedings in

connection with the claims Plaintiffs asserted against the City Defendants. The Court
authorized Plaintiffs to proceed to discovery on their remaining claims (Counts 21 and 24 of
Plaintiffs Second Amended Complaint) [Docket Entry 218].
Because Plaintiffs’ claims against DSI Defendants are also asserted against City
Defendants, DSI Defendants are the unintended and entirely derivative beneficiaries of the
stay imposed to protect the immunities claimed by the City Defendants. Looking the
proverbial gift horse in the mouth, DSI now seeks to impose a raft of novel rules to govern
the discovery process in connection with claims Plaintiffs do not assert against them.
The Duke Defendants correctly explain in their Response that DSI’s proposed
modifications will “inject considerable confusion into the discovery process” in this already
complex case” and that “[t]he confusion is even greater when this case is considered along
with Carrington et al. v. Duke University, et al.” Duke Defs.’ Resp. 1 (Aug. 16, 2011). Plaintiffs

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The City Defendants are the City of Durham, North Carolina, Patrick Baker, Steven
Chalmers, Ronald Hodge, Lee Russ, Beverly Council, Jeff Lamb, Michael Ripberger, David W.
Addison, Mark D. Gottlieb, and Benjamin W. Himan.

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could not agree more.3 At the risk of belaboring the obvious, Plaintiffs will address the
layers of bureaucracy DSI proposes to add to the Federal Rules of Civil Procedure and the
Initial Pre-Trial Order governing discovery in two claims not asserted against DSI.
DSI’s first two requests would establish a rule that “no written discovery may be
propounded to any party except as to the issues raised in Counts 21 and 24” and that “[n]o
deposition questions may be propounded that directly relate to the issues raised in any count
other than Counts 21 and 24.” DSI Request at 2.

These two rules are beyond even the

imaginings of Orwell. The multitude of problems that these two rules would cause begin
with the practical question of who would officiate the fine line between deposition questions
“that directly relate to any count other than Counts 21 and 24” and deposition questions that
indirectly relate to a count other than Counts 21 and 24? And what if a deposition question
relates directly to all Counts? The problems go on and on. And they are compounded by
the fact that they all arise every time a question trips of the tongue of a lawyer in the
depositions conducted in this initial discovery phase. This is the picture of confusion and
inefficiency. While there is much more to say in this regard, it is enough to point out that
Judge Beaty’s carefully drafted June 9, 2011 Discovery Order clearly addresses the scope of
discovery in this initial phase of the litigation, and what is not. See Order 8-9 (June 9, 2011).
Indeed, in light of Judge Beaty’s Discovery Order, DSI’s proposals appear to be more a
motion for reconsideration of that ruling, scantily dressed up as a “Request to Include

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Plaintiffs note that the same reasoning Duke employs in opposition to DSI’s motion also
explains why Duke’s proposal to consolidate this case with Carrington is misguided.

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Provisions in Scheduling Order.” The Federal Rules, together with Judge Beaty’s Order,
provide ample protections for the DSI Defendants’ protectable interests in connection with
the discovery going forward on claims not asserted against them. See, e.g., Discovery Order at
7-9. The Court should reject them both.
DSI’s third proposed rule would provide 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, Smith, Graves, Dean and Drummond, even if that party was present or represented at
the deposition or had reasonable notice of it.” DSI Request at 2 (emphasis supplied). This one
does not suffer for a lack of gall. Among other things, the rule turns Rule 32 inside out.
Cf. Fed. R. Civ. P. Rule 32(a)(1)(A) (“At a hearing or trial, all or part of a deposition may be
used against a party” where “the party was present or represented at the taking of the
deposition or had reasonable notice of it.”) If adopted, DSI’s rule would quickly emerge as
the poster child for wasteful litigation. For example, under the rule, deposition testimony
authenticating a document could not be used against not only DSI Defendants, but also
other Duke Defendants (e.g., Tara Levicy), or the City Defendants. Rather, the rule would
require Plaintiffs to re-depose the same deponent to re-authenticate the document by reasking the same foundational questions just to prepare the document for use “against” most
of the defendants in this case. That is an absurd result. And it would be repeated endlessly
Here too, Judge Beaty’s June 9th Order and the Federal Rules provide ample protections for
any legitimate interest the DSI Defendants seek to protect through this new rule. DSI’s
proposal should be rejected.
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DSI’s remaining requests do not address any concern not already addressed by Judge
Beaty's Order of June 9th, the Federal Rules of Civil Procedure, the Local Rules of this
Court, and the Initial Discovery Order. Plaintiffs know of no reason to add another layer of
procedural protections to discovery on claims not asserted against DSI, and DSI has not
explained why any of them are necessary. Respectfully, the Court should reject them all.
For all the foregoing reasons, all of DSI’s Request to Include Provisions in
Scheduling Order should be denied.
Dated: September 2, 2011

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Robert C. Ekstrand
Robert C. Ekstrand (NC Bar No. 26673)
811 Ninth Street
Durham, North Carolina 27705
E-mail: [e-mail]
Tel: [phone]
Fax: [phone]

Counsel for Plaintiffs
/s/ Stefanie A. Sparks
Stefanie A. Sparks (NC Bar No. 42345)
811 Ninth Street
Durham, North Carolina 27705
E-mail: [e-mail]
Tel: [phone]
Fax: [phone]

Counsel for Plaintiffs

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

1:07-CV-953

DUKE UNIVERSITY, et al.,
Defendants.
CERTIFICATE OF SERVICE

I hereby certify that on September 1, 2011, pursuant to Rule 5 of the Federal Rules
of Civil Procedure and Local Rules 5.3 and 5.4, I electronically filed the foregoing Response
with the Clerk of the Court using the CM/ECF system, which will automatically generate
and send notification of such filing to the undersigned and registered users of record. The
Court’s electronic records show that each party to this action is represented by at least one
registered user of record (or that the party is a registered user of record), to each of whom
the Notice of Electronic Filing will be sent.

/s/ Stefanie A. Sparks
Stefanie A. Sparks
NC Bar No. 42345

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