MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 261

REPLY, filed by Defendants ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH, to Response to #249 MOTION for Protective Order filed by ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH. (Attachments: #1 Exhibit A - Plaintiffs' First Request for Production, #2 Exhibit B - Plaintiffs' Second Request for Production of Documents and Things)(SUN, PAUL)

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’ REPLY
BRIEF IN FURTHER SUPPORT
OF MOTION FOR PROTECTIVE
ORDER CONCERNING
PLAINTIFFS’ SUBPOENAS
ADDRESSED TO BURSONMARSTELLER AND EDELMAN

Defendants.

Plaintiffs’ subpoenas to non-parties Burson-Marsteller and Edelman seek
information that is not relevant to the two narrow claims on which this Court has
permitted discovery. For that reason, there is good cause for the entry of the
protective order requested.
In their opposition to the Duke Defendants’ motion, Plaintiffs never attempt
to explain the relevance of their subpoenas to the pending claims as limited by the
Court. Instead, they misstate relevant legal standards and describe claims very
different than those the Court has allowed to go forward.
Plaintiffs also deflect attention from their inability to justify the subpoenas
under applicable standards. They incorrectly characterize the relief the Duke
Defendants seek as “extreme” and “extraordinary.” They also cast aspersions
about the Duke Defendants’ own discovery history that are irrelevant to the motion

before the Court and factually incorrect. These arguments are dispatched below.
ARGUMENT
I.

DISCOVERY MUST BE RELEVANT TO CLAIMS OR DEFENSES.
Rule 26(b)(1) of the Federal Rules of Civil Procedure is clear. “Unless

otherwise limited by court order, the scope of discovery is as follows: Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense . . . .” Fed. R. Civ. P. 26(b)(1).
Plaintiffs concede that Rule 26(b)(1) controls the scope of discovery. Pls.’
Resp. to Mot. Prot. Order 9, n.4, ECF No. 254 (“Opposition” or “Opp.”). By twice
truncating quotes from that rule, however, Plaintiffs twist the applicable standards.
First, Plaintiffs correctly note that a court may order discovery of any matter
“relevant to the subject matter involved in the action,” Opp. 9, n.4, but omit a key
preface to that part of the Rule. That preface makes clear that such discovery is
permitted only “[f]or good cause.” Fed. R. Civ. P. 26(b)(1). “In order to secure
discovery as to the ‘subject matter’ of an action, a party now must obtain court
authorization by showing ‘good cause.’” Volumetrics Med. Imaging, LLC v.
Toshiba Am. Med. Sys., Inc., No. 1:05CV955, 2011 WL 2470460, at *2, n.2
(M.D.N.C. June 20, 2011). No such authorization has been sought or granted here.
This requirement of obtaining a court order for “good cause” was added to
Rule 26(b)(1), effective December 1, 2000. Prior to that time, party-controlled
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discovery was allowed into “any matter, not privileged, which is relevant to the
subject matter in the pending action.” Fed. R. Civ. P. 26(b)(1) (1993). The rule
was amended to foreclose “parties [from seeking] to justify discovery requests that
sweep far beyond the claims and defenses of the parties on the ground that they
nevertheless have a bearing on the ‘subject matter’ involved in the action.” Fed. R.
Civ. P. 26 advisory committee’s notes to 2000 amendment. This is precisely what
Plaintiffs seek to do with the subpoenas to Burson-Marsteller and Edelman.
Second, Plaintiffs claim that the information sought need not even be
relevant: “[W]hile the topics enumerated in Plaintiffs’ subpoena are highly [sic]
the claims that are presently going forward, they need not be ‘highly relevant’ or
even ‘relevant’ to Plaintiffs’ claims. Rather, the subpoenas need only ‘appear
reasonably calculated to lead to the discovery of admissible evidence.’” Opp. 12
(quoting Fed. R. Civ. P. 26(b)(1)). Again, Plaintiffs’ quotation is incomplete.
The complete sentence from the rule makes clear that, while information
need not be admissible to be subject to discovery, relevancy is required: “Relevant
information need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1) (emphasis added). Rule 26, in fact, makes relevancy a threshold.

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II.

THE SUBPOENAS SEEK INFORMATION THAT IS NOT RELEVANT.
The claims on which discovery is allowed are narrow. Those claims concern

(1) “the allegation that Duke imposed disciplinary measures against Plaintiffs,
specifically suspension, without providing them the process that was promised”;
and (2) alleged “fraudulent misrepresentations in letters to Plaintiffs regarding
Plaintiffs’ Duke Card information.” Order 8-9, June 9, 2011, ECF No. 218.
There is no obvious reason why public relations firms hired by Duke would
have information relevant to these claims. Plaintiffs offer no such reason in their
Opposition.
A.

Because Counts 21 and 24 Do Not Have Any “Public” Aspect, the
Documents Sought by the Subpoenas Are Not Relevant.

Plaintiffs attempt to justify the subpoenas for public relations documents by
recasting their surviving claims as having some “public” aspect. Counts 21 and 24
– as Plaintiffs pleaded them and as this Court has permitted them to proceed – have
no such aspect. They concern essentially private transactions between the Duke
Defendants and Plaintiffs; namely, disciplinary actions and letters. Although
Plaintiffs originally asserted claims that do have “public” aspects (like Count 5 –
False Public Statements), only Counts 21 and 24 are proper subjects of discovery.
Plaintiffs hypothesize that Duke’s “global media strategy” is relevant to
Count 21, claiming that “Duke employed its media strategy to separate Plaintiffs

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from the University – literally – by suspending them, and then amplified the public
perception of their separation by making public statements to a nationwide
audience announcing Plaintiffs’ suspensions from the University and subjecting
Plaintiffs to further public humiliation and obloquy.” Opp. 2. Count 21, however,
has nothing to do with “public perception,” statements to a “nationwide audience,”
or “public humiliation or obloquy.” Plaintiffs never explain how Duke’s alleged
“global media strategy” could be relevant to determine the only aspect of Count 21
going forward: whether Duke suspended Plaintiffs without process. Order 8, June
9, 2011, ECF No. 218.
Similarly, Count 24 is not about “false representations to the public” as
Plaintiffs imply. Opp 3. Count 24 concerns the contents of what Plaintiffs call the
“Subpoena Letter” – a letter allegedly delivered to each of the Plaintiffs concerning
their Duke Card information, but not published to the public. See Pls.’ 2nd Am.
Compl. ¶ 1250. ECF No. 136. Count 24 alleges “misrepresentations” to the
Plaintiffs, not to the public. See id. ¶¶ 1251-1252, 1254-1256. It is only now, in
opposing this Motion, that Plaintiffs allege “the public” as an audience to these
communications. Opp. 2-3. Plaintiffs have not demonstrated how any alleged
“global media strategy” is relevant to evaluating whether correspondence between
the Duke Defendants and Plaintiffs contained statements constituting “fraud.”

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B.

Plaintiffs Do Not Address the Overbreadth of the Subpoenas.

Even if Burson-Marsteller or Edelman had information relevant to Counts
21 or 24, the broad swath cut by the subpoenas is not tailored to those claims. The
categories of evidence sought would not tend to prove or disprove that the Duke
Defendants committed the alleged violations of disciplinary rules or fraud.
Plaintiffs offer no analysis of their actual requests. Their conclusory defense
of the subpoenas as “narrowly drawn,” however, speaks for itself:
Plaintiffs’ subpoena to Burson-Marstellar [sic] to request
[sic] documents in either the corporation’s possession,
custody, or control relating to the Plaintiffs, their
suspensions, their teammates, the Duke University Mens’
Lacrosse Team, any investigation of Plaintiffs, their
teammates, or Crystal Mangum’s false accusations (e.g.,
that Plaintiffs were principals of accomplices in a brutal,
thirty-minute, racially motivated gang rape), the
management of the University’s public response
(specifically advice and strategic assistance provided by
Burson-Marsteller to the University regarding the
University’s response to press inquiries, alumni inquiries,
the University’s crisis management, and the University’s
issued public statements), the University’s public
response on April 5, 2006 – the day Plaintiff Ryan
McFadyen was unilaterally suspended in violation of
every procedural protection the University promises to all
students before taking such action.
Opp. 6-7. This statement paraphrasing the scope of the subpoenas confirms that
the bulk of the requests have nothing to do with Counts 21 or 24.

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III.

THE RELIEF SOUGHT IS NOT “EXTRAORDINARY” OR “EXTREME,”
SO THE BURDEN ON THE DUKE DEFENDANTS IS NOT “HEAVY.”
Plaintiffs describe the relief that the Duke Defendants seek as “extreme” and

“extraordinary.” Opp. 1, 9, 10, 11, 12. The Duke Defendants, however, do not
seek to prohibit all discovery from or concerning Burson-Marsteller or Edelman,
as Plaintiffs claim. Opp. 1, 9, 10. The Duke Defendants request that two specific
subpoenas be ordered withdrawn. If any documents regarding Duke’s media
relations are relevant to Plaintiffs’ remaining claims, Plaintiffs can seek them
through narrowly tailored requests to the Duke Defendants and/or appropriate third
parties. This is neither extreme nor extraordinary in any sense.
The Duke Defendants do not bear a “heavy burden,” as Plaintiffs contend.
Opp. 1, 10, 18. They need only show “good cause” for the relief they seek. Fed.
R. Civ. P. 26(c). To do that, the Duke Defendants must “present[] specific facts in
support of the request as opposed to conclusory or speculative statements.” MLC
Auto., LLC v. Town of S. Pines, No. 1:05cv1078, 2007 WL 128945, at 5 (M.D.N.C.
Jan. 11, 2007). The Duke Defendants have done that here.
The specific requests in the subpoena are the facts that support the Duke
Defendants’ motion. The subpoenas seek irrelevant information on their face,
including documents that concern “Crystal Mangum’s accusations,” “public
relations advice,” “the firing of former Head Coach Mike Pressler,” “President

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Brodhead's television interviews,” the establishment of “a committee to examine
the culture of the lacrosse team,” and the “decision to cancel the remainder of the
Duke University Men's Lacrosse 2006 Season.” Duke Defs.’ Mot. Prot. Order. Ex.
A, ECF No. 249. None of these documents would tend to prove or disprove the
only issues on which discovery is allowed; to wit, whether the Duke Defendants
suspended Plaintiffs without process or defrauded Plaintiffs in the Subpoena
Letters. See Order 8-9, June 9, 2011, ECF No. 218. As such, the subpoenas violate
Rule 26 and two Court Orders. See id.; Order, Sept. 9, 2011, ECF No. 244.
Where, as here, a court can determine irrelevance from the face of the
requests, the burden shifts to the party seeking information to show relevance. See,
e.g., Dean v. Anderson, No. 01–2599–JAR, 2002 WL 1377729, at *2 (D. Kan.
June 6, 2002) (“The Court determines that the subpoenas duces tecum on their face
do not appear relevant. As such, . . . the party seeking the information [has] the
burden to show the relevancy of these subpoenas.”) (emphasis added). As
discussed above, it is Plaintiffs who have not carried their burden.
IV.

THE DUKE DEFENDANTS’ DISCOVERY HISTORY IS MISSTATED
IN THE OPPOSITION AND IRRELEVANT TO THIS MOTION.
Plaintiffs also remark on the size of the Duke Defendants’ production, see

Opp. 3, 7, and complain that the Duke Defendants should have produced the
materials requested from Burson-Masteller and Edelman “long ago.” Opp. at 7.

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With these remarks, Plaintiffs create the impression that they requested the socalled “global media strategy” documents from the Duke Defendants. They have
not. See Pls.’ 1st & 2nd Reqs. for Produc. of Docs. (attached as Exhibits A and B).
Had Plaintiffs done so, the Duke Defendants would have raised the same
relevance concerns they raise here and had them considered by this Court. Instead,
Plaintiffs elected to first seek discovery from non-parties in other jurisdictions. Cf.
Med. Components, Inc. v. Classic Med., Inc., 210 F.R.D. 175, 180 n.9 (M.D.N.C.
2002) (explaining special considerations given to discovery aimed at non-parties).
In any event, each party’s discovery obligations are independent. See, e.g.,
Kinetic Concepts, Inc. v. Convatec Inc., 268 F.R.D. 226, 242, n.23 (M.D.N.C.
2010). Accordingly, Plaintiffs’ remarks on the Duke Defendants’ production and
discovery requests, see Opp. 3, 7, have no bearing on the motion before the Court.
V.

THE OVERBROAD SUBPOENAS LIKELY SEEK CONFIDENTIAL
AND/OR PRIVILEGED INFORMATION.
Plaintiffs devote four pages, Opp. 14-18, to contesting that the subpoenas

may seek confidential or privileged materials. See Duke Defs.’ Br. Supp. Mot.
Prot. Order 12, n.3, ECF No. 250. Plaintiffs’ arguments are inapposite.
Plaintiffs are critical of the Duke Defendants for not knowing exactly what
documents Burson-Marsteller and/or Edelman each has in its possession. Opp.

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18.1 They contend that the Duke Defendants should have made the showings set
forth in Rule 26(b)(5) – a rule that addresses the scenario in which a party
withholds otherwise discoverable information claiming privilege.
That scenario, however, is not in play here, and the Rule 26(b)(5)
requirements are inapposite. Moreover, it would be nonsensical to put the onus on
the Duke Defendants to create a “log or listing,” Opp. 15, of a third-party’s
documents – especially before those documents are even identified or known.
Plaintiffs also dispute the need for a “general protective order” to enable
discovery of confidential information going forward, referring to the Duke
Defendants’ efforts to reach agreement on such measures. Opp. 17-18. While the
Duke Defendants do hope to establish such measures soon, Plaintiffs’ arguments
are misplaced. This motion seeks the withdrawal of particular subpoenas.
The Duke Defendants raised the prospect that documents subject to the
subpoenas might be confidential or privileged as a point of consideration for the
Court. It bears on the potential risks and harm to the Duke Defendants of the

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Plaintiffs’ conclusory statements insinuate, but do not demonstrate, that the Duke
Defendants possessed either the legal authority or the practical ability to ensure the
preservation of documents prepared by the public relations firms. Opp. 14. The
law imposes no such requirement. See Goodman v. Praxair Servs., Inc., 632 F.
Supp. 2d 494, 515-16 (D. Md. 2009) (defendant had no obligation to preserve any
documents prepared by two third-party consultants).
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unfettered disclosure of irrelevant information that Plaintiffs seek through
subpoenas. It is not, however, the thrust of the Duke Defendants’ argument.
CONCLUSION
The Duke Defendants respectfully request that the Court grant the Motion
for Protective Order and order that Plaintiffs withdraw immediately the subpoenas
in issue in the jurisdictions in which they have been served.
This the 17th day of January, 2012.
/s/ Paul K. Sun, Jr.
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
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CERTIFICATE OF SERVICE
I hereby certify that on January 17, 2012, I electronically filed the foregoing
DUKE DEFENDANTS’ REPLY BRIEF IN FURTHER 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 17th day of January, 2012.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke Defendants

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