MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 263

BRIEF re #262 MOTION for Protective Order Limiting the Rule 30(b)(6) Deposition Noticed by Plaintiffs by Defendant DUKE UNIVERSITY filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A - 12-5-11 Notice of 30(b)(6) Deposition, #2 Exhibit B - 12-9-11 Cross-Notice of 30(b)(6) Deposition)(SUN, PAUL)

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

)
)
)
)
)
)
)
)
)
)

Civil Action Number
1:07-cv-00953

DUKE UNIVERSITY’S BRIEF IN SUPPORT OF ITS MOTION
FOR A PROTECTIVE ORDER LIMITING THE RULE 30(b)(6)
DEPOSITION NOTICED BY PLAINTIFFS
Defendant Duke University submits this Brief in Support of its Motion for a
Protective Order Limiting the Rule 30(b)(6) Deposition noticed by Plaintiffs.
Pursuant to the Court’s June 9, 2011 Order [DE 218], discovery in this case is
currently proceeding only as to two claims. Because the Rule 30(b)(6) notice to
Duke University seeks testimony on many topics that are beyond the scope of the
discovery allowed by the Court, Duke University is entitled to a protective order.
Specifically, Duke is entitled to a protective order foreclosing discovery on Topics 6,
8, 14, and 15, and limiting discovery on Topics 5, 12, and 16 consistent with the
Court’s orders.

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 off-campus.
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.
Duke University and other defendants moved to dismiss the claims against
them, and the Court dismissed twenty-seven Counts on March 31, 2011. Order, at 2
(March 31, 2011) [DE 187]. The Court stayed all proceedings with respect to twelve
Counts, including discovery, pending resolution of an interlocutory appeal. Order,
at 9 (June 9, 2011) [DE 218]. The Court allowed discovery to proceed against Duke
University on the two remaining Counts – Counts 21 and 24 – but emphasized that
“discovery will proceed only as to these two claims.” Id. 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.” Id. at 8. Count 24 alleges a claim a
claim against Duke for “fraud based on alleged fraudulent misrepresentations in
2

letters to Plaintiffs regarding Plaintiffs’ Duke Card information.” Id.
On December 5, 2011, the plaintiffs in Carrington v. Duke University, Case
No. 1:08-cv-119, issued a notice of deposition to Duke University under Rule
30(b)(6). See Ex. A. On December 9, 2011, under the procedure authorized by the
LR 16(c) Initial Pretrial Order entered on September 19, 2011 [DE 244], Plaintiffs in
this case cross-noticed the deposition. See Ex. B.
QUESTION PRESENTED
Whether Duke University is entitled to a protective order barring and/or
limiting deposition questions as to Topic Numbers 5, 6, 8, 12, 14, 15 and 16 of the
Rule 30(b)(6) cross notice served on Duke University, where those topics are not
relevant to “any party’s claim or defense” to any of the Counts for which discovery
is proceeding or are over broad as written.
ARGUMENT
I. Duke is Entitled to a Protective Order Because Plaintiffs Seek to Depose a
Rule 30(b)(6) Witness on Topics Not Relevant to Any Claim or Defense
Currently in Discovery
Pursuant to Judge Beaty’s Order on June 9, 2011 [DE 218], “discovery will
proceed only as to” Counts 21 and 24. Order at 9; see also Fed. R. Civ. P. 26(b)
(specifically deferring to limits of “court order”). Rule 26(b)(1) of the Federal Rules
of Civil Procedure further provides that discovery is limited to matters “relevant to
any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). When read in conjunction
3

with the June 9, 2011 Order the result is that discovery is limited to matters “relevant
to any party’s claim or defense” to Counts 21 or 24. See also Volumetrics Med.
Imaging, LLC v. Toshiba Am. Med. Sys., Inc., No. 1:05CV955, 2011 WL 2470460,
at *2 (M.D.N.C. June 20, 2011) (noting that the “claims and defenses” language was
added “in response to concerns that, ‘in some instances, particularly cases involving
large quantities of discovery, parties [were] seek[ing] 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’” )
(quoting Fed. R. Civ. P. 26 advisory committee’s notes, 2000 Amendment,
Subdivision (b)(1)).
Where, as in this case, a Rule 30(b)(6) deposition notice seeks discovery on
topics not relevant to any party’s claim or defense to a Count proceeding in the
action, entry of a protective order to limit the scope of the deposition is appropriate.
See, e.g., Shenoy v. Charlotte-Mecklenburg Hosp. Auth., No. 3:08-cv-125, 2011 WL
3564424 (W.D.N.C. Aug. 12, 2011); Young v. United Parcel Serv. of Am., Inc., No.
08-cv-2586, 2010 WL 1346423, at *9 (D. Md. Mar. 30, 2010) (prohibiting
questioning on “matters that are not related to claims in [plaintiff’s] amended
complaint”); Coryn Grp. II, LLC v. O.C. Seacrets, Inc., 265 F.R.D. 235, 238 (D. Md.
2010) (limiting topics of 30(b)(6) deposition for relevance to claims and defenses
involved in case).
4

Further, where a court has already determined the boundaries of discovery –
as this Court did in limiting discovery in its 9 June 2011 Order [DE 218] – a
protective order should be granted to prevent parties from going beyond those
boundaries. See Shenoy, 2011 WL 3564424, at *2 (granting protective order where
plaintiff’s 30(b)(6) notice failed to “heed the guidance” of court’s order that
discovery be limited to remaining claims in action); U.S. ex rel. Barko v. Halliburton
Co., 270 F.R.D. 26, 29 (D.D.C. 2010); Abudiad v. City and County of San
Francisco, No. 09-cv-1778, 2011 WL 5520943, at *3 (N.D. Cal. Nov. 14, 2011)
(quashing plaintiff’s 30(b)(6) deposition notice where “the topics squarely fall” into
portion of discovery that had been bifurcated).
Seven of the topics in the deposition notice are not relevant to the parties’
claims or defenses on which discovery is proceeding. Where “relevancy is not
apparent, it is the burden of the party seeking 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). Accordingly, Plaintiffs have the burden of showing the relevancy of
these seven topics.
A.

Topic Number 5

Topic Number 5 in Plaintiffs’ Rule 30(b)(6) deposition cross-notice seeks
testimony on:

5

Defendant’s policies and practices for preserving data –
both electronic and hard-copy – that may relate to the Rape
Allegations,1 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.
vii.
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;

1

Plaintiffs’ Cross Notice of Deposition defines “Rape Allegations” as
follows: “‘Rape Allegations’ means information relating to the allegations made by
Crystal Mangum relating to the events that occurred at 610 North Buchanan Blvd. in
Durham, NC on March 13-14, 2006, including but not limited to, the medical
examination of Crystal Mangum, any investigation of the allegations, any reaction to
the allegations, and any disposition of the allegations, including the ultimate
exoneration of the three members of the 2005-2006 Duke University Men’s
Lacrosse team who had been indicted in connection with Ms. Mangum’s
allegations.”
6

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 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.
Topic 5 seeks discovery on “Defendant’s policies and practices for preserving
data – both electronic and hard-copy – that may relate to the Rape Allegations.” As
previously noted, Plaintiffs have defined “Rape Allegations” broadly, to include,
among other things, “information relating to the allegations made by Crystal
Mangum relating to the events that occurred at 610 North Buchanan Blvd. in
Durham, NC on March 13-14, 2006,” “the medical examination of Crystal
Mangum,” and “ultimate exoneration of the three members of the 2005-2006 Duke
University Men’s Lacrosse team who had been indicted” (none of whom are
plaintiffs in this case). None of these topics is relevant to the scope of any claim or
defense currently proceeding in discovery. Nothing about Ms. Mangum’s
7

allegations, Ms. Mangum’s medical exam, or the exoneration of the three indicted
members of the lacrosse team would tend to prove or disprove the only issues on
which discovery has been permitted: whether Duke imposed disciplinary measures
against Plaintiffs without providing them due process, or whether any of the Duke
Defendants defrauded Plaintiffs in this case in connection with statements about
their Duke Card information.
Even if some discoverable information may fall within this broad topic, such
as the preservation of data relating to Counts 21 or 24,2 the topic is broader than the
Court’s June 9, 2011 Order allows and is therefore outside the scope of a permissible
Rule 30(b)(6) deposition. See, e.g., Young, 2010 WL 1346423, at *9 (30(b)(6)
deposition topics “must not be overbroad”).
Moreover, this topic is over broad because it is not limited to this case.
Specifically, the subparts to this topic seek to discover “[w]hen Defendant first
anticipated that litigation may arise from the Rape Allegations,” and “Defendant’s
establishment of a litigation hold for data that may relate to the Rape Allegations,
including when such a hold was instituted,” but “litigation” is not limited to this

2

As there is no evidence that Duke University has not honored its discovery
obligations, inquiry into this topic may be premature. See Edelen v. Campbell Soup
Co., 265 F.R.D. 676, 684 (N.D. Ga. 2010) (finding no error in magistrate judge’s
order denying discovery on such topic until Plaintiff developed evidence to show
Defendants had not honored their discovery obligations).
8

case. There is no reason Duke’s actions with respect to any other litigation would be
relevant to Counts 21 or 24 of the present lawsuit.
Accordingly, this topic as drafted is overbroad.
B.

Topic Number 6

Topic Number 6 in Plaintiffs’ cross-notice of deposition pursuant to Rule
30(b)(6) seeks testimony on “[c]ommunications with insurance carriers regarding
the Rape Allegations, including the dates of such communications.”
Communications with an insurer regarding litigation are protected work product.
Therefore, a protective order is appropriate. See Medical Assur. Co., Inc. v.
Weinberger, No. 4:06-cv-117, 2011 WL 2471898, at *10 (N.D. Ind. June 20, 2011);
Metro. Life Ins. Co. v. Muldoon, No. 06-cv-2026, 2007 WL 4561142, at *2 (D. Kan.
Dec. 20, 2007).
Further, communications with insurance carriers regarding Crystal Mangum’s
allegations are outside the scope of any claim or defense currently proceeding in
discovery. Such communications are not relevant to the disclosure of Duke Card
data to the Durham Police, nor are they relevant to the response to the subpoena
seeking production of Duke Card data from Duke University (Count 24). Likewise,
communications with insurance companies are not related to Duke’s alleged
imposition of disciplinary measures against Plaintiffs without providing them
sufficient due process (Count 21).
9

C.

Topic Number 8

Topic Number 8 in Plaintiffs’ cross-notice of deposition pursuant to Rule
30(b)(6) seeks testimony on “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.”
It is not Duke University’s “public relations” with respect to the incidents of
March 13, 2006 that is at issue, but rather Duke University’s private
communications with Plaintiffs regarding the disclosure of their Duke Card
information and Duke University’s private interactions with Plaintiffs regarding the
procedure employed in their suspensions. Counts 21 and 24 are not about what the
Duke Defendants generally communicated to the press, alumni, applicants, or the
general student body about the March 13, 2006 events. On its face, therefore,
inquiry into Duke’s public relations strategy with respect to Crystal Mangum’s
allegations is not relevant to the claims alleged in Counts 21 and 24.
Accordingly, because Deposition Topic 8 is not relevant to any of the parties’
claims or defenses to Counts 21 or 24, Duke University should not have to produce a
witness to testify regarding this topic. See Young, 2010 WL 1346423, at *9
(prohibiting questioning on matters not related to plaintiff’s claims); Abudiad, 2011
WL 5520943, at *3 (quashing plaintiff’s 30(b)(6) deposition notice where topics
were not relevant to claims proceeding in discovery).
10

D.

Topic Number 12

Topic Number 12 in Plaintiffs’ cross-notice of deposition pursuant to Rule
30(b)(6) seeks testimony on “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.”
Communications between Duke University and Durham regarding the
disclosure of Duke Card data to the Durham Police and the subsequent subpoena
seeking production of Duke Card data from Duke University would be relevant to
Count 24 and defenses to the claim alleged therein. Communications regarding the
procedure employed by Duke University in imposing disciplinary measures against
Plaintiffs would be relevant to the parties’ claims or defenses to Count 21 and
defenses to that claim.
But Topic Number 12 is not so limited; it is much broader. For example,
because Plaintiffs define “Rape Allegations” to include the medical examination of
Crystal Mangum, Topic Number 12 would require Duke to produce a witness to
testify about Duke’s communications with Durham regarding this medical
examination. Whatever the communications between Duke and Durham regarding
Crystal Mangum’s medical examination, evidence of those communications is not
relevant to Plaintiffs’ proof of Duke-Card-related fraud, to Plaintiffs’ proof
regarding their suspensions, or to Duke’s defenses to those claims. Topic Number
11

12 is, therefore, impermissibly broader than the scope of any claim or defense
currently proceeding in discovery as it goes beyond communications relevant to the
two counts on which discovery is proceeding.
Accordingly, Duke is entitled to a protective order limiting inquiry on this
topic to communications between Duke University and Durham regarding the
disclosure of Duke Card data to the Durham Police and the subsequent subpoena
seeking production of Duke Card data from Duke University, or regarding the
procedure employed by Duke University in imposing disciplinary measures against
Plaintiffs. See Young, 2010 WL 1346423, at *9 (30(b)(6) deposition topics “must
not be overbroad”).
E.

Topic Number 14

Topic Number 14 in Plaintiffs’ Rule 30(b)(6) deposition cross-notice seeks
testimony on:
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 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.
12

Inquiry into Duke’s decision-making process for the seven issues set forth in
Topic 14 has no bearing on the issues in Counts 21 or 24. For example, Plaintiffs
brought several claims regarding the cancellation of the season, including the portion of
Count 21 which alleged breach of contract on the basis that Duke failed to enforce its
anti-harassment policy. This aspect of Count 21 was dismissed on March 31, 2011.
Order, at 2. (March 31, 2011) [DE 187]. Accordingly, the cancellation of the season is
not relevant to any party’s claims or defenses to Count 21. Similarly, the other issues
are likewise not relevant to any party’s claims or defenses. Because these topics are not
relevant to Counts 21 or 24, discovery into these topics is prohibited by the Court’s
Order of June 9, 2011.
Accordingly, because Topic 14 is not relevant to Counts 21 or 24, Duke
University should not have to produce a witness to testify regarding this topic. See,
e.g., Young, 2010 WL 1346423, at *9 (prohibiting questioning on matters not related
to plaintiff’s claims); Abudiad, 2011 WL 5520943, at *3 (quashing plaintiff’s
30(b)(6) deposition notice where topics were not relevant to claims proceeding in
discovery).
F.

Topic Number 15

Topic Number 15 in Plaintiffs’ Rule 30(b)(6) deposition cross-notice seeks
testimony on “Duke’s knowledge of any results of DNA testing related to the Rape
Allegations, including the date when Duke first learned of those results.”
13

The results of DNA testing have no relationship to Count 21 involving the
Duke Card data or to Count 24 involving the procedures employed by Duke
University in imposing disciplinary measures against Plaintiffs. Plaintiffs’ Second
Amended Complaint does not allege any connection between results of DNA testing
and either of these Counts, and Duke University is not aware of any such
relationship. Duke’s knowledge of any results of DNA testing related to Crystal
Mangum’s allegations is not relevant to Counts 21 or 24.
Moreover, 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”
– is related to claims against the City Defendants, on which discovery specifically
has been stayed. Order, at 6 (June 9, 2011) [DE 218]. The June 9, 2011 Order also
explicitly stayed discovery as to all defendants on claims involving the City
Defendants, because “[i]t is quite likely that, when discovery as to the other parties
proceeds, it would prove necessary for petitioners and their counsel to participate in
the process to ensure the case does not develop in a misleading or slanted way that
causes prejudice to their position,” thereby undermining the protection of the
defense of qualified immunity. Order, at 6 (June 9, 2011) [DE 218]. Questions
around DNA testing are central to several of the claims Plaintiffs have raised against
the City Defendants, so this same concern would arise if Plaintiffs were permitted to
depose a Duke representative on Topic 15. Id. at 6 (noting that claims against
14

Defendant DNA Security, Inc., among others, “are all claims that are also asserted
against at least some of the City Defendants and are so intertwined with the claims
against the City Defendants that it would be almost impossible to proceed to
discovery on those claims without overstepping into the claims against the City
Defendants presently on appeal.”).
G.

Topic Number 16

Topic Number 16 in Plaintiffs’ cross-notice of deposition pursuant to Rule
30(b)(6) seeks testimony on
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.
Inquiry into Duke’s supervision of the actions of Richard Brodhead, Tallman
Trask, and Suzanne Wasiolek relating to Crystal Mangum’s allegations is in no way
relevant to (i) the disclosure of Duke Card Data to the Durham Police Department,
the subsequent subpoena that was issued to Matthew Drummond on 31 May 2006,
seeking production of Duke Card Data from Duke University, and the response to
that subpoena; or (ii) the allegation that Duke imposed disciplinary measures against
Plaintiffs without providing them sufficient due process. None of these three
15

administrators is alleged to have been involved with the Duke Card data or the
disciplinary measures, and none of the three is a defendant in Counts 21 or 24. ,
Therefore, this topic is outside the scope of discovery permitted in this Court’s June
9, 2011 Order.
CONCLUSION
For the reasons and authorities stated above, Duke University respectfully
requests that this Court grant the Motion for Protective Order, foreclose Plaintiffs’
requested discovery into Topics 6, 8, 14, 15, and 16 of their Rule 30(b)(6) deposition
cross-notice, and limit the scope of Topics 5, 12, and 16 of their cross-notice to the
issues relevant to Counts 21 or 24 of the First Amended Complaint.
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]
16

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

17

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