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)

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EDWARD CARRINGTON, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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No. 1:08–CV–00119

PLAINTIFFS’ NOTICE OF DEPOSITION OF DUKE UNIVERSITY
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6)
PLEASE TAKE NOTICE that pursuant to Federal Rule of Civil Procedure
30(b)(6), Plaintiffs will take the deposition by oral examination of Defendant Duke
University before a notary public or other officer authorized to administer oaths on the
dates and times specified below. Such deposition will be recorded by stenographic
means. Duke University is required to designate one or more persons to testify as to the
matters known by, or reasonably available to, Duke University on the topics specified
below and described more particularly in Exhibit A.
Deposition Topic Number

Date and Time

Topic Nos. 6, 8-17

January 18, 2012 at 9:00 a.m.1

Topic Nos. 1-5, 7

January 20, 2012 at 9:00 a.m.

The deposition will take place at the offices of Thomas, Ferguson & Mullins, LLP,
119 East Main Street, Durham, NC 27701, and continue day to day until completed.
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Duke has indicated that it may designate more than one witness to testify on these
topics. If so, the deposition of the second witness may take place on January 19, 2012.
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December 5, 2011

William J. Thomas II
N.C. Bar No. 9004
THOMAS, FERGUSON
& MULLINS, L.L.P.
I l9 East Main St.
Durham, NC 27701
919-682-5648
Thomas@tfmattomeys. com

David H. Thompson
Nicole J. Moss
Peter A. Patterson
COOPER & KIRK, PLLC
1523 New Hampshire Ave., NW
Washington, D.C. 20036
202-220-9600
[e-mail]

Brian S. Koukoutchos
28 Eagle Trace
Mandeville, LA7047l
985-626-5052
[e-mail]
A t t o r ney s

fo r P la i nt iffs

EXHIBIT A
Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Defendant
Duke University is required to designate one or more officers, directors, managing
agents, or other persons who consent to testify upon its behalf as to matters known or
reasonably available to Defendant Duke University. Defendant Duke University shall set
forth, for each person designated, the matters on which the person will testify. Unless
otherwise specified, the time period for each topic listed below is March 2006 to the
present.

DEFINITIONS
As used herein, the following words and phrases shall have the following
meanings:
1.

“Communication” means any meeting, conversation (face-to-face,

telephonic, or otherwise), discussion, telex message, cable, correspondence, message,
electronic mail, voice mail, exchange, provision or relay of a document, or other
occurrence whereby thoughts, opinions, data, or other information are transmitted
between or among one or more persons, or through any photographic, mechanical,
electrical or electronic device or devices for receiving, transmitting, or storing data or
other information.
2.

“Defendant,” “you,” and “your” refer to Defendant Duke University,

including all persons acting or purporting to act on behalf of Defendant Duke University.

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3.

“Document(s)” should be construed in the broadest sense permissible, and

includes all “writings,” “recordings,” and “photographs,” as those terms are defined in
Rule 1001 of the Federal Rules of Evidence, as well as all “communications” as defined
above. Accordingly, “document(s)” includes, but is not limited to, all written, printed,
recorded or graphic matter, photographic matter, sound reproductions, electronic mail, or
other retrievable data (whether recorded, taped, or coded electrostatically,
electromagnetically, optically or otherwise on hard drive, diskette, compact disk, primary
or backup tape, audio tape or video tape) from whatever source derived and however and
by whomever prepared, produced, reproduced, disseminated or made. Without limiting
the generality of the foregoing, “document(s)” includes the original and any non-identical
copy and also every draft and proposed draft of all correspondence, internal memoranda,
notes of meetings, telegrams, telexes, facsimiles, electronic mail, reports, transcripts or
notes of telephone conversations, diaries, notebooks, minutes, notes, tests, reports,
analyses, studies, testimony, speeches, worksheets, maps, charts, diagrams, computer
printouts, and any other writings or materials of any nature whatsoever, whether or not
divulged to other parties, together with any attachments thereto and enclosures therewith.
In addition, the word “document(s)” encompasses all forms and manifestations of
electronically or optically coded, stored, and/or retrievable information, including but not
limited to “email,” “voice mail,” digital images and graphics, digital or analog audiotapes
and files, and digital or analog videotapes and files.

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4.

“DukeCard Data” means information associated with the use of Plaintiffs’

DukeCard between March 13, 2006 and March 14, 2006 inclusive, as referenced in Count
8 of the Amended Complaint filed in this action.
5.

“Duke University” or “Duke” means Duke University, its officers,

employees, board of trustees members, faculty members, agents, representatives, and
attorneys, and all other persons affiliated with or acting on behalf of Duke University.
6.

“Durham” or “City of Durham” means the City of Durham, North Carolina

and all divisions, departments, components, offices, police officers, investigators,
prosecutors, supervisors, administrators, officers, and other agents thereof, including
Michael Nifong.
7.

“FERPA” means the Family Educational Records and Privacy Act. See 20

U.S.C. 1232g; 34 C.F.R. Part 99.
8.

“Lacrosse Team” means the 2005-2006 Duke University Men’s Lacrosse

9.

“Person” means and refers to not only natural persons, but also firms,

Team.

partnerships, associations, corporations, subsidiaries, divisions, departments, joint
ventures, proprietorships, syndicates, trusts, groups, and organizations; federal, state, or
local government or government agencies, offices, bureaus, departments, entities,
including any court (or judge or other officer thereof); other legal, business, or
government entities; and all subsidiaries, affiliates, divisions, departments, branches, and
other units thereof or any combination thereof. “Person” includes the present and former

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officers, executives, partners, directors, trustees, employees, attorneys, agents,
representatives, and all other persons acting or purporting to act on behalf of the person
and also its subsidiaries.
10.

“Plaintiffs” are Edward Carrington, Casey J. Carroll, Michael P. Catalino,

Thomas Clute, Kevin Coleman, Joshua R. Covaleski, Edward J. Crotty, Edward S.
Douglas, Kyle Dowd, Daniel Flannery, Richard Gibbs Fogarty, Zachary Greer, Erik S.
Henkelman, John E. Jennison, Ben Koesterer, Fred Krom, Peter J. Lamade, Adam
Langley, Christopher Loftus, Daniel Loftus, Anthony McDevitt, Glenn Nick, Nicholas
O’Hara, Daniel Oppedisano, Sam Payton, John Bradley Ross, Kenneth J. Sauer, III,
Steve Schoeffel, Robert Schroeder, Devon Sherwood, Daniel Theodoridis, Brett
Thompson, Christopher Tkac, John Walsh, Jr., Michael Ward, Robert Wellington,
William Wolcott, and Michael Young.
11.

“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.

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12.

The word “including” shall have its ordinary meaning and shall mean

“including but not limited to” and shall not indicate limitation to the examples or items
mentioned.
13.

The words or phrases “reflect,” “refer,” or “relate to”—or any tense or

combination of those words or phrases—mean reflecting, referring to, relating to,
regarding, discussing, concerning, constituting, mentioning, pertaining to, alluding to, or
associated with.
14.

The singular of each word shall be construed to include its plural and vice

versa, and the root word and all derivations (i.e., “ing,” “ed,” etc.) shall be construed to
include each other.
15.

The words “and” as well as “or” shall be construed both conjunctively as

well as disjunctively.
16.

The word “each” shall be construed to include “every” and vice versa.

17.

The word “any” shall be construed to include “all” and vice versa.

18.

The present tense shall be construed to include the past tense and vice

19.

The masculine shall be construed to include the feminine and vice versa.

20.

The words “knowledge,” “information,” “possession,” “custody,” and

versa.

“control” of a person shall be construed to include such person’s agents, representatives,
and attorneys.

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21.

The words “the present” mean the date on which Defendant responds to

these requests.

MATTERS AS TO WHICH TESTIMONY IS REQUIRED
1.

Defendant’s systems used to create, transmit, store, retrieve, and delete

electronic data, including emails, computer files, voice mails, data posted to the internet,
and text messages.
2.

The manner in which Defendant manages, indexes, locates, maintains, and

archives documents, including paper and electronic document retention policies, policies
and practices for maintaining paper and electronic documents created by persons no
longer affiliated with Duke University, and the use of any data deletion programs.
3.

Defendant’s policies and practices for backing up electronic data, including

software used, retention of backup data, and how and where such data is stored.
4.

The ability of end users to delete data from their accounts on Defendant’s

technology systems, and Defendant’s ability to access such deleted data, if any.
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.
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c. Defendant’s efforts to locate and preserve data that may relate to the Rape
Allegations from:
i. personal email accounts;
ii. other non-Duke email accounts, such as employer email accounts;
iii. Duke email accounts;
iv. postings to social media websites and blogs;
v. text messages;
vi. voice mails;
vii. alumni correspondence;
viii. board meetings and other meetings of Duke officials;
ix. individual notes or files;
x. presentations;
xi. press releases;
xii. communications with Durham; and
xiii. 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 data that may
relate to the Rape Allegations;

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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 indentified in Defendant’s letter of June
30, 2008.
6.

Communications with insurance carriers regarding the Rape Allegations,

including the dates of such communications.
7.

Data being preserved from Plaintiffs’ Duke email accounts, including:
a. Defendant’s policies and practices for preserving data from Plaintiffs’ Duke
email accounts, including policies and practices for managing, indexing,
locating, maintaining, and archiving such data.
b. Data from Plaintiffs’ Duke email accounts that Defendant provided to
Plaintiffs, including the format of such data;

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.
9.

The subpoena for Plaintiffs’ DukeCard Data, including communications

with Plaintiffs and Plaintiffs’ attorneys regarding the subpoena, communications with
Durham regarding the subpoena, the discovery by Duke’s attorneys that the data had

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already been provided to Durham, and the identity of every person who knew before
August 1, 2006 that the data had been provided to Durham.
10.

Duke’s policies and practices for responding to requests for data related to

students’ use of DukeCards, including Duke’s understanding of FERPA’s affect on such
requests, from 2001 to the present.
11.

The relationship between Duke and J. Wesley Covington, including the

nature of the relationship, its origin, matters on which Mr. Covington provided Duke with
representation, advice, or other services, and the relationship between Mr. Covington and
Suzanne Wasiolek.
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.
13.

Duke’s policies, practices, and understanding relating to the “student-

administrator” privilege.
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;

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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.
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.
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.
17.

Duke’s supervision of the persons involved in providing Plaintiffs’

DukeCard Data to Durham and in responding to the subpoena for that data.

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CERTIFICATE OF SERVICE
It is hereby certified that the foregoing has been served this day by electronic
transmission as provided in Rule 5(b)(2)(E) to those parties listed whose counsel have
agreed in writing to such electronic service at the email address listed in lieu of service by
mail:
Richard W. Ellis
[e-mail]
Dixie T. Wells
[e-mail]
Jeremy M. Falcone
[e-mail]
Counsel for Duke University Defendants
in Carrington & McFadyen
Linwood Wilson
[e-mail]
Linwood Wilson, pro se

James B. Maxwell
[e-mail]
Counsel for David Addison in
Carrington & McFadyen
Counsel for James T. Soukop,
Kammie Michael, and Richard D.
Clayton in McFadyen
Robert C. Ekstrand
[e-mail]
Stefanie A. Sparks
[e-mail]
Counsel for McFadyen Plaintiffs

Patricia P. Kerner
[e-mail]

Reginald B. Gillespie, Jr.
[e-mail]

Counsel for Patrick Baker, Steven
Chalmers, Ronald Hodge, Lee
Russ, Stephen Mihaich, Beverly Council,
Jeff Lamb, Michael Ripberger in
Carrington & McFadyen

Counsel for City of Durham in
Carrington & McFadyen
Counsel for Edward Sarvis in
McFadyen

Counsel for Laird Evans in McFadyen
Dan J. McLamb
[e-mail]
Shirley M. Pruitt
[e-mail]

Paul R. Dickinson, Jr.
[e-mail]
James A. Roberts, III
[e-mail]

Counsel for Duke University Health
System, Inc., Tara Levicy, and Theresa

Counsel

for Brian Meehan in

McFadyen

Arico in Carrington & McFadyen
Counsel for Private Diagnostic Clinic,
PLLC and Julie Manly in McFodyen

Robert James King, III
[e-mail]
Counsel

for DNA Security, Inc. and

Edwin M. Speas, Jr.
[e-mail]
David William Long
dwlon g@poynerspruill. com

Richard Clark in McFadyen
Counsel

for Mark Gotrlieb in

Carrington & McFadyen
Joel Miller Craig
[e-mail]
Counsel

for Benjamin Himan in

Carrington & McFadyen

This the 5th day of December, 201 1 .

Peter A. Patterson