MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 250

BRIEF re #249 MOTION for Protective Order by Defendants ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH 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.,

DUKE DEFENDANTS’ BRIEF IN
SUPPORT OF MOTION FOR
PROTECTIVE ORDER
CONCERNING PLAINTIFFS’
SUBPOENAS ADDRESSED TO
BURSON-MARSTELLER AND
EDELMAN

Defendants.

Defendants Duke University, Robert Dean, Matthew Drummond, Aaron
Graves, and Gary N. Smith (the “Duke Defendants”) have moved, pursuant to Fed.
R. Civ. P. 26(c), that this Court enter a protective order concerning the third-party
subpoenas issued by the Plaintiffs on 17 November 2011, to public relations firms
Burson-Marsteller in the Southern District of New York, and Edelman in the
Northern District of Illinois. The Duke Defendants seek an order directing
Plaintiffs to withdraw immediately the subpoenas in issue in the jurisdictions in
which they have been served. The Duke Defendants are entitled to a protective
order because the documents sought by Plaintiffs are outside the scope of
discovery permitted by Fed. R. Civ. P. 26(b) and the Court’s Orders of 9 June 2011
[DE 218] and 9 September 2011 [DE 244].

NATURE OF THE CASE AND STATEMENT OF FACTS
This action arises out of the investigation of members of the 2005-2006
Duke men’s lacrosse team stemming from false allegations of rape made by a
stripper hired by one of the team members to perform at a private party held offcampus. None of the Plaintiffs in this case was charged or tried for any offense
resulting from those allegations. Nevertheless, Plaintiffs have sued Duke
University, certain Duke University employees, the City of Durham, various
individuals associated with the City of Durham, and a DNA laboratory for
purported violations of their legal rights in connection with the investigation.
Pursuant to this Court’s 9 June 2011 Order, all proceedings with respect to
Counts 1, 2, 5, 12, 13, 14, 18, 25, 26, 32, 35 and 41, including discovery, are
stayed pending resolution of an interlocutory appeal. Order, at 9 (9 June 2011)
[DE 218].1 Discovery may proceed only with respect to Counts 21 and 24. Id.
Count 21 alleges a claim against the Duke Defendants for breach of contract,
limited to the allegation that disciplinary measures were imposed against Plaintiffs
without providing them process. Count 24 alleges a claim against the Duke
Defendants for fraud based on representations in letters to Plaintiffs regarding
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The City of Durham and individual Defendants Patrick Baker, Steven Chalmers,
Beverly Council, Ronald Hodge, Jeff Lamb, Lee Russ, Michael Ripberger, David
Addison, Mark Gottlieb, and Benjamin Himan (collectively, the “City Defendants”), have
sought an interlocutory appeal before the United States Court of Appeals for the Fourth
Circuit with respect to claims against one or more Durham-related Defendants.
2

Plaintiffs’ DukeCard information.
On 17 November 2011, Plaintiffs issued subpoenas to third parties BursonMarsteller and Edelman. See Mot. Exs. A & B. Burson-Marsteller and Edelman
are public relations firms that Duke University engaged at various times. The
subpoenas seek a broad range of documents and exceed the scope of permissible
discovery. See Mot. Exs. A & B.
QUESTION PRESENTED
Whether the Duke Defendants are entitled to a protective order directing
Plaintiffs to withdraw the third-party subpoenas for documents issued on 17
November 2011 to public relations firms Burson-Marsteller and Edelman.
ARGUMENT
A.

Relevant Legal Standards
Rule 26(b)(1) of the Federal Rules of Civil Procedure limits the scope of

discovery to nonprivileged matters “relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b). See also Quality Aero Tech., Inc. v. Telemetrie Elecktronik, 212
F.R.D. 313, 315 n.2 (E.D.N.C. 2002) (noting that the “claims or defense” language
added in the 2000 amendments to the Federal Rules “implicitly seek[s] to farm out
the ‘fishing expeditions’ previously allowed and serve[s] to reduce the broad
discovery which has heretofore been afforded litigants in civil actions”).
Where “relevancy is not apparent, it is the burden of the party seeking
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discovery to show the relevancy of the discovery request.” See Steil v. Humana
Kansas City, Inc., 197 F.R.D. 442, 445 (D. Kan. 2000). Rule 45, governing
subpoenas to third parties, adopts the standard codified in Rule 26. See Schaaf v.
SmithKline Beecham Corp., 233 F.R.D. 451, 452-453 (E.D.N.C. 2005). Thus, the
scope of discovery under a Rule 45 subpoena to non-parties is the same as that
permitted under Rule 26. See Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV,
2010 WL 1839229, at * 2 (S.D. Fla. May 6, 2010).
Rule 26(c)(1) of the Federal Rules of Civil Procedure authorizes a party to
“move for a protective order in the court where the action is pending.” Fed. R.
Civ. P. 26(c)(1). This Court may “for good cause” issue a protective order
“forbidding the disclosure or discovery” or “forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to certain matters.” Fed.
R. Civ. P. 26(c)(1)(A), (D). A subpoena for the production of documents may be
the subject of a protective order in accordance with the provisions of Rule 26. See
Anker v. G.D. Searle & Co., 126 F.R.D. 515, 518 (M.D.N.C. 1989).
A party has standing to move for a protective order concerning a subpoena
served on a third party. See, e.g., Static Control Components, Inc. v. Darkprint
Imaging, 201 F.R.D. 431, 434 (M.D.N.C. 2001); Food Lion, Inc. v. Capital
Cities/ABC, Inc., No. 6:92CV00592, 1996 WL 575946, at **1-2 (M.D.N.C. Sept.
6, 1996). Moreover, any party may move for a protective order where a subpoena
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violates a case management order. See, e.g., Integra Lifesciences I, Ltd. v. Merck
KGaA, 190 F.R.D. 556, 562 n.3 (S.D. Cal. 1999). Pursuant to its right to control
the general outline of discovery, this Court has the authority to issue a protective
order, even with respect to subpoenas issued in other districts. See Static Control,
201 F.R.D. at 434.
“Special weight” is given to avoid burdening non-parties with discovery.
See, e.g., Med. Components, Inc. v. Classic Med., Inc., 210 F.R.D. 175, 180 n.9
(M.D.N.C. 2002). Discovery of a non-party must be closely regulated where
suspicion exists that discovery is being taken for purposes unrelated to the lawsuit
at hand. See Echostar Commc’ns Corp. v. The News Corp., 180 F.R.D. 391, 396
(D. Colo. 1998). Protective orders are appropriate means by which to prevent
overbroad and irrelevant discovery directed at non-parties. See, e.g., Auto-Owners
Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005).
B.

The Discovery Sought Contravenes Court Order.
Rule 26 opens by specifically deferring to the limits of a “court order.” Fed.

R. Civ. P. 26(b). Pursuant to the Court’s Order of 9 June 2011 [DE 218],
discovery has been limited to two claims:
Specifically, Count 21 alleges a claim against Duke for breach of
contract, limited to the allegation that Duke imposed disciplinary
measures against Plaintiffs, specifically suspension, without providing
them the process that was promised. In addition, Count 24 alleges a
claim against [the Duke Defendants] for fraud based on alleged
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fraudulent misrepresentations in letters to Plaintiffs regarding
Plaintiffs’ Duke Card information. […] Therefore, discovery will
proceed only as to these two claims.
Order, at 8-9 (9 June 2011) [DE 218] (emphasis added). This holding was
reiterated by the September 19, 2011, Initial Pretrial Order [DE 244] stating that
“discovery is proceeding only with respect to Counts 21 and 24” but stayed as to
all other counts. Order, at 1 (19 September 2011) [DE 244].
This Court has already determined the boundaries of discovery in its Orders
of 9 June 2011 [DE 218] and 9 September 2011 [DE 244]. However, neither
Burson-Marsteller nor Edelman, nor the courts from which those subpoenas were
issued, is aware of this Court’s Orders limiting discovery to Counts 21 and 24. In
an analogous scenario, protective orders are granted, for instance, to the extent that
discovery is sought from non-parties concerning dismissed claims. See, e.g., White
Mule Co. v. ATC Leasing Co. LLC, No. 3:07CV00057, 2008 WL 2680273, at *6.
(N.D. Ohio 2008). Plaintiffs’ attempts to circumvent this Court’s Orders by
pursuing prohibited discovery in other jurisdictions from non-parties warrants
entry of a protective order requiring Plaintiffs to withdraw the subpoenas.
C.

The Discovery Otherwise Violates Rule 26(b)(1).
1.

Almost All of the Requests are Not Properly Limited to Counts 21
or 24.

The subpoenas are not likely to lead to the discovery of relevant, admissible

6

evidence, and therefore contravene Rule 26(b)(1). The requests for “All Materials”
“relating to” these subjects, versions of which appear in both subpoenas (unless
otherwise noted), suffer from this problem when directed at the public relations
firms2:
• Crystal Mangum’s allegations that she was assaulted at 610 N. Buchanan
Blvd. on or about March 3, 2006;
• Burson-Marsteller being retained to help Duke University manage its public
response to the allegations made by Crystal Mangum from March 13, 2006
to the present (including advice given by Burson-Marsteller to University
officials, administrators, board members, and employees regarding internal
behavior and statements) [Burson-Marsteller subpoena only];
•

Burson-Marsteller’s public relations advice and communications with Duke
University, its administrators, officials, employees, alumni, board members,
students, and other consultants regarding both “on” and “off-the record”
statements to members of the press (including the schools’ newspaper, The
Chronicle) as well as the public from March 13, 2006 to the present relating
to the allegations and/or the Duke University Men’s Lacrosse Team
[Burson-Marsteller subpoena only ];

•

The strategic assistance provided to Duke University by Burson-Marsteller
with press inquiries, alumni, crisis management, and public statements from
March 13, 2006 to the present [Burson-Marsteller subpoena only];

•

“Duke University’s public response to Crystal Mangum’s allegations, the
University’s knowledge of their falsity” [Burson-Marsteller subpoena only];

•

Any “effort to cover up the conduct or agreements made in connection” with
Crystal Mangum’s allegations “of any University agent, employee, or
official”;

2

The topics in both subpoenas are strung together in a long, run-on block of
phrases, without numbering or other easy identification.
7

•

Duke University’s decision to cancel the remainder of the Duke University
Men’s Lacrosse 2006 season;

•

Duke University’s actions on April 5, 2006, including but not limited to […]
the firing of former Head Coach Mike Pressler, President Brodhead’s
television interviews, President Brodhead’s Letter to the Community, setting
up a committee to examine the culture of the lacrosse team, setting up a
committee to investigate the Duke administration and/or the decision to
create any of the 5 committees announced by President Brodhead on April 5,
2006;

•

Any investigation of the allegations by Crystal Mangum;

•

Polling of the public regarding Duke University’s reputation [Edelman
subpoena only];

•

Any investigation of […] their teammates’ behavior;

•

Edelman being retained to assist Duke University with their reputation
following the allegations described above from March 13, 2006 to the
present [Edelman subpoena only];

•

Edelman’s assistance to Duke University regarding the University’s public
response to these allegations from March 13, 2006 to the present (including
directions given internally) [Edelman subpoena only];

•

Edelman’s advice and communications with Duke University, its
administrators, officials, employees, alumni, board members, students,
parents, and other consultants with on and off-the record statements to the
press from March 13, 2006 to the present relating to the University’s
reputation as a result of the allegations and/or the Duke University Men’s
Lacrosse Team [Edelman subpoena only];

•

Edelman’s assistance provided to Duke University with press inquiries,
crisis management, and public statements from March 13, 2006 to the
present, specifically concerning the University’s reputation and Roy
Cooper’s exoneration of the players [Edelman subpoena only]; and

8

•

Duke University’s strategic approach to alumni relations, applicant
recruitment, financial campaigning, students, parents, and employees to
manage the effect of Crystal Mangum’s allegations on the University’s
reputation, both in the present and future [Edelman subpoena only].

See Mot. Exs. A & B.
Each of these topics and subtopics extends well beyond the appropriate
scope of discovery that the Court has permitted. Not one of these topics seeks
information relating to the alleged breach of contract with respect to the student
suspension process, or to the alleged “fraudulent misrepresentations” Plaintiffs
complain the Duke Defendants made when writing letters to Plaintiffs. Nor do
these discovery requests appear reasonably calculated to lead to the discovery of
admissible evidence given that the only admissible evidence will be with respect to
Counts 21 and 24.
These topics, most of which seek public relations advice received
concerning Duke University’s public “reputation,” have nothing to do with either
Count 21 or 24. It is not the Duke Defendants’ “public response” (a phrase used in
many of these requests) to the incidents of 13 March 2006 which is at issue, but
rather the Duke Defendants’ private interactions with Plaintiffs regarding the
procedure employed in their suspensions, and the Duke Defendants’ private
communications with Plaintiffs regarding the disclosure of their DukeCard
information. Counts 21 and 24 are not about what the Duke Defendants generally

9

communicated to the press, alumni, applicants, the general student body, etc. about
the 13 March 2006 events.
Parties clearly have standing to move for a protective order where subpoenas
seek irrelevant information. See Auto-Park, 231 F.R.D. at 429; Streck, Inc. v.
Research & Diagnostic Sys., Inc., No. 8:06CV458, 2009 WL 1562851, at *3 (D.
Neb. June 1, 2009). A party’s motion for a protective order as to the information
sought by a non-party subpoena is properly granted where the subpoena seeks
information that does not pertain to a claim within, or defense to, the complaint.
See Mayes v. City of Oak Park, Civil Action No. 05-CV-74386-DT, 2007 WL
187941, at *2 (E.D. Mich. Jan. 22, 2007). A protective order is appropriate here
because most of the requests contained in the subpoenas not only seek irrelevant
information, but also are insusceptible to reasonable modification given the narrow
scope of Counts 21 and 24 and the nature of the “public relations” materials
sought.
2.

The Remaining
Burdensome.

Requests

are

Overbroad

and

Unduly

The remaining requests (which appear in both subpoenas) are so overbroad
and unduly burdensome as to require extensive and narrow tailoring to Counts 21
and 24 (and defenses thereto), including the requests for “All Materials” the public
relations firms hold “relating to” to these subjects:

10

• Ryan McFadyen;
• Matthew Wilson;
• Breck Archer;
• The Duke University Men’s Lacrosse Team; and
• Any investigation of Ryan McFadyen, Matthew Wilson, Breck
Archer.

See Mot. Exs. A & B. For example, the topic “Ryan McFadyen” is too overbroad,
especially since a permissible request could be fashioned to address the specific
process by which Mr. McFadyen was suspended.
Yet even the two narrowest requests advanced by Plaintiffs are overbroad in
light of the recipients of the subpoenas (public relations firms) and the use of the
omnibus phrases “All Materials” and “relating to,” including:
• The suspension of Ryan McFadyen; and
• The suspension of Matthew Wilson.
See Mot. Exs. A & B.
Each and every request in the subpoenas to the public relations firms suffers
from facial over breadth because each seeks “All Materials” “relating to” each
topic. The Federal Rules require document requests to “describe with reasonable
particularity each item or category of items to be inspected.” Fed. R. Civ. P.

11

34(b)(1)(A); see also Pulsecard, Inc. v. Discover Card Serv., Inc., No. Civ. A. 942304-EEO, 1996 WL 397567, at *10 (D. Kan. July 11, 1996) (applying
requirements of Rule 34 to Rule 45 subpoena). Use of all-encompassing language
and omnibus phrases in subpoenas violates this requirement. See Pulsecard, 1996
WL 397567, at *10. Therefore, the use of the phrase “relating to” to preface
Plaintiffs’ requests invalidates each subpoena request as overbroad, irrelevant, and
not reasonably calculated to lead to the discovery of admissible evidence. See id.
“All Materials” held by the public relations firms “relating to” the mere fact
of Plaintiffs’ suspensions would not be relevant to Count 21. If the firms
specifically advised the Duke Defendants as to the process by which to suspend a
Plaintiff – i.e., the gravamen of Plaintiffs’ complaint at Count 21 -- that might be
relevant. While the subpoenas could have been properly drafted to be aimed at
discovering admissible documents addressing Counts 21 and 24, that is not what is
before the Court. 3
3

Additionally, the subpoenas’ attempts to discover confidential commercial
information are premature in the absence of a general protective order. Rule 26(c)(1)(G)
provides that this Court may bar discovery into matters that would require disclosure of
confidential commercial information. (Rule 45(c)(3)(B)(i) contains a similar provision
regarding quashing a subpoena seeking confidential commercial information.) Rule
26(d) provides that this Court may regulate the sequence and timing of discovery “in the
interests of justice.” Fed. R. Civ. P. 26(d). Parties requesting confidential information
from a non-party to the case, even when a protective order is in place, must demonstrate a
strong need for such documents, particularly when they have marginal relevance. See
Litton Indus. v. Chesapeake & Ohio Ry., 129 F.R.D. 528, 531 (E.D. Wis. 1990);
Echostar, 180 F.R.D. at 396. Here, no general protective order has been entered.
12

Because Plaintiffs’ requests are not limited in scope to admissible materials
that have some connection to the only two Counts going forward, the granting of a
protective order is appropriate. See, e.g., Food Lion, 1996 WL 575946, at *2.
D.

Seeking Irrelevant Discovery From Third-Parties Harasses the Duke
Defendants.
“Discovery under Fed. R. Civ. P. 26(b) is not without limits; the manner and

scope of discovery must be tailored to some extent to avoid harassment or being
oppressive.” Ocean Atl. Woodland Corp. v. DRH Cambridge Homes, Inc., 262 F.
Supp. 2d 923, 926-27 (N.D. Ill. 2003); see Boykin Anchor Co., Inc. v. Wong, No.
5:10–CV–591–FL, 2011 WL 5599283, at *2 (E.D.N.C. Nov. 17, 2011) (“discovery
is not limitless”) (citing Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th
Cir. 2004)). Rule 26(c) provides that upon a showing of good cause, a court “may
make any order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).
That rule “was adopted as a safeguard for the protection of parties and witnesses in
view of the almost unlimited right of discovery given by Rule 26(b)(1). The
provision emphasizes the complete control that the court has over the discovery
process.” 8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard
L. Marcus, Federal Practice and Procedure § 2036 (3d ed. 2011) (internal
Accordingly, the Duke Defendants are not adequately protected from the disclosure of
confidential information. Some of the documents requested may also be privileged.
13

reference omitted).
Plaintiffs’ subpoenas are an impermissible attempt to harass the Duke
Defendants by seeking irrelevant discovery from third parties in violation of this
Court’s Orders and Rule 26. Courts foreclose discovery when they perceive an
improper motive or purpose behind broad discovery. See Ocean Atl. Woodland
Corp., 262 F. Supp. 2d at 927 (N.D. Ill. 2003); Echostar, 180 F.R.D. at 395-96.
Where, as here, “the subpoenas look like nothing more than a fishing expedition,
or, more accurately, an exercise in swamp-dredging and muck-raking,” entry of an
order precluding discovery from third parties is warranted. See Perry v. Best Lock
Corp., No. IP 98–C–0936–H/G, 1999 WL 33494858, at *3 (S.D. Ind. Jan. 21,
1999). As shown above, Plaintiffs’ subpoenas do not properly seek information
relevant to Counts 21 and 24. Thus, the Duke Defendants respectfully request that
the Court enter a protective order to protect the Duke Defendants from disclosure
of irrelevant information to which Plaintiffs are not entitled.
CONCLUSION
For the reasons and authorities stated above, the Duke Defendants
respectfully request that this Court grant the Motion for Protective Order, ordering
that Plaintiffs shall withdraw immediately the subpoenas in issue in the
jurisdictions in which they have been served.
This the 8th day of December, 2011.
14

/s/ Richard W. Ellis
Richard W. Ellis
N.C. State Bar No. 1335
Email: [e-mail]
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
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

15

CERTIFICATE OF SERVICE
I hereby certify that on December 8, 2011, I electronically filed the
foregoing DUKE DEFENDANTS’ BRIEF IN SUPPORT OF MOTION FOR
PROTECTIVE ORDER CONCERNING PLAINTIFFS’ SUBPOENAS
ADDRESSED TO BURSON-MARSTELLER AND EDELMAN 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 8th day of December, 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