MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 262

MOTION for Protective Order Limiting the Rule 30(b)(6) Deposition Noticed by Plaintiffs by DUKE UNIVERSITY. (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 UNIVERSITY’S MOTION
FOR A PROTECTIVE ORDER
LIMITING THE RULE 30(b)(6)
DEPOSITION NOTICED BY
PLAINTIFFS

Defendants.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Defendant
Duke University (“Duke”) respectfully moves this Court to enter a protective order
concerning Plaintiff’s cross-notice of a deposition pursuant to Rule 30(b)(6) issued
by the Plaintiffs on 9 December 2011 to Duke. Duke seeks an order instructing
Plaintiffs not to inquire into Topics 6, 8, 14, or 15 during the Rule 30(b)(6)
deposition of Duke’s representative. Duke further seeks an order limiting the
scope of Topics 5, 12, and 16 of the notice to issues relevant to Counts 21 and 24
of the Second Amended Complaint. In support of this Motion, Duke states as
follows:
1.

On 9 December 2011, Plaintiffs issued a cross-notice of deposition to

Duke University pursuant to Federal Rule of Civil Procedure 30(b)(6), which

included the following topics:
a. Topic 5:
Defendant’s policies and practices for preserving data - both
electronic and hard-copy - that may relate to the Rape Allegations,
including:
a.

When Defendant first anticipated that litigation may arise
from the Rape Allegations;

b.

Defendant’s establishment of a litigation hold for data that
may relate to the Rape Allegations, including when such a
hold was instituted, communications related to the hold, and
efforts to monitor compliance.

c.

Defendant’s efforts to locate and preserve data that may
relate to the Rape Allegations from:
i.
ii.

iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.

Personal email accounts;
Other non-Duke email accounts, such as employer email
accounts;
Duke email accounts;
Postings to social media websites and blogs;
Text messages;
Voice mails;
Alumni correspondence;
Board meetings and other meetings of Duke officials;
Individual notes or files;
Presentations;
Press releases;
Communications with Durham; and
Any other sources of data;

d.

The manner in which Defendant maintains data that may
relate to the Rape Allegations, including the location of such
data and any software used for that purpose;

e.

Any indexing, processing, or reviewing Duke has done of
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data that may relate to the Rape Allegations;
f.

The identity and activities of any outside vendors or other
third parties Duke has used to assist in its preservation
efforts;

g.

The manner in which Defendant identifies custodians whose
data is being preserved and the identity of such custodians,
including the 252 custodians of electronically stored
information identified in Defendant's letter of June 30, 2008.

b. Topic 6: “Communications with insurance carriers regarding the Rape
Allegations including the dates of such communications.”
c. Topic 8: “Duke’s public relations strategy with respect to the Rape
Allegations, including the process for developing that strategy, its
implementation, and any consideration of its impact on Plaintiffs’
reputations.”
d. Topic 12: “Duke’s communications with Durham regarding the Rape
Allegations, including communications relating to meeting with
members of the Lacrosse Team and information disclosed by
members of the Lacrosse Team.”
e. Topic 14:
Duke’s decision-making process for responding to the Rape
Allegations, including: (a) communicating with and/or advising
members of the Lacrosse Team, their coaching staff, their
parents, and their attorneys on matters relating to the Rape
Allegations; (b) responding to and participating in Durham’s
investigation of the Rape Allegations; (c) determining the truth
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of the Rape Allegations; (d) cancelling the 2005-2006 men’s
lacrosse season; (e) forcing Mike Pressler to resign as lacrosse
coach; (f) formulating public statements relating to the Rape
Allegations; (g) considering how Duke’s response would affect
members of the Lacrosse Team.”
f. Topic 15: “Duke’s knowledge of any results of DNA testing related
to the Rape Allegations, including the date when Duke first learned of
those results.”
g. Topic 16: “Duke’s supervision of the actions of Richard Brodhead,
Tallman Trask, and Suzanne Wasiolek relating to the Rape
Allegations, including the identity of the persons involved in such
supervision, the selection of those persons, the supervisory actions
taken by those persons, and the manner and substance of those
persons’ communications with each other and with President
Brodhead, Dr. Trask, and Dean Wasiolek.”
2.

Pursuant to the Court’s 9 June 2011 Order [DE 218], discovery may

proceed only with respect to two claims: Counts 21 and 24. Count 21 alleges a
claim against Duke University 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. Count 24 alleges a claim
against Duke University for fraud based on alleged fraudulent misrepresentation in
letters to Plaintiffs regarding Plaintiffs’ Duke Card information.
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3.

Topics 5, 6, 8, 12, 14, 15, and 16 go beyond the three narrow claims

presently before this Court. Those topics are not relevant to any party’s claim or
defense to Counts 21 or 24, and/or are over broad as written.
4.

Thus, inquiry into these topics is outside the scope of discovery

permitted by Fed. R. Civ. P. 26(b).
5.

In accordance with Fed. R. Civ. P. 26(c)(1), the undersigned counsel

for Duke University certifies that they conferred in good faith with Plaintiffs’
counsel in an effort to resolve this discovery dispute prior to filing this Motion.
Counsel for Duke presented their specific objections to each of the above-listed
topics to Plaintiffs’ counsel and suggested to Plaintiffs’ counsel that Plaintiffs limit
the scope of their notice. Plaintiffs’ counsel rejected this suggestion.
6.

Specifically, on 17 January 2012, Duke’s counsel, Paul Sun, and

Plaintiffs’ counsel, Stefanie Sparks, met in person and discussed Plaintiffs’ cross
notice and Duke’s objections, but were unable to reach agreement.
7.

For the foregoing reasons, as more fully explained in Duke’s brief

contemporaneously filed with this Motion, Duke respectfully requests that the
Court order Plaintiffs not to pose questions relating to Topics 6, 8, 14, and 15
during the Rule 30(b)(6) deposition of any Duke representative, and to limit the
scope of Topics 5, 12, and 16 of their notice to the issues relevant to Counts 21 and
24 of the First Amended Complaint.
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This the 18th 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 University

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CERTIFICATE OF SERVICE
It is hereby certified that on January 18, 2012, I electronically filed the
foregoing Duke University’s Brief in Support of its Motion for a Protective
Order Limiting the Rule 30(b)(6) Deposition Cross Noticed by Plaintiffs 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 the 18th 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 University