MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 267

RESPONSE to #261 Reply to Response to Motion to the Duke Defendants Allegations Concerning Count 21 filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3) (SPARKS, STEFANIE) Modified on 2/6/2012 to add text to identify exhibits. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.

1:07 CV 953

DUKE UNIVERSITY, et al.
Defendants.

PLAINTIFFS’ RESPONSE TO THE DUKE DEFENDANTS’
ALLEGATIONS CONCERNING COUNT 21
Plaintiffs hereby respond to the Duke Defendants’ false assertion that Plaintiffs
have violated two Court Orders, see Reply Brief in Further Support of Motion for
Protective Order Concerning Plaintiffs’ Subpoenas Addressed to Burson-Marsteller
and Edelman (Doc. No. 261) (“Reply”), by stating the following:
In the Duke Defendants’ Reply, they make the conclusory assertion that
Plaintiffs’ Count 21 “has nothing to do with ‘public perception,’ statements to a
‘nationwide audience,’ or ‘public humiliation or obloquy.’” Defs.’ Reply 5. Lacking
facts to back up their claim, the Duke Defendants attempt to do so with another
conclusory assertion; that the “subpoenas seek irrelevant information on their face.”
Id. at 7. They complain that Plaintiffs seek documents relating to the public relations

strategy that drove the Duke Defendants’ conduct and decisions in responding to
Crystal Mangum’s false accusations. Specifically, they assert that “the firing of former
Head Coach Mike Pressler,” “President 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” are all irrelevant to the suspensions giving rise to Plaintiffs’ breach of
contract claims. Defs.’ Reply 7-8. This is extraordinarily misleading to the Court.
Duke ignores the glaring fact that all of the events cited above occurred on
April 5, 2006, the same day (within hours) that Ryan McFadyen was unilaterally
suspended in violation of every procedural protection the University promises to all
students before taking such action, giving rise to his breach of contract claim. In fact,
all of the events – including the suspension of Ryan McFadyen – were discussed
together in Duke’s publically issued Statement on April 5, 2006 and President Richard
Brodhead’s April 5, 2006 Letter to the Community; both the Statement and Letter to
the Community were posted together on Duke University’s website on April 5, 2006.
The Statement and Letter to the Community are attached hereto as Exhibit 1.
Furthermore, President Brodhead announced these events and the University’s
decisions together during nationally televised interviews he gave on April 5, 2006.
Pls.’ Second Amended Compl. (Doc. No. 136) (“SAC”), ATTACHMENT 17 at 221

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and ATTACHMENT 26 at 262 (video recordings of President Brodhead’s interviews
with CNN and WRAL).
Duke also ignores the correspondence among its most senior administrators
(e.g., the President of the University, the Provost, and the Vice President for Student
Affairs) which show that the their April 5th decisions were all closely related and were
all driven by the Duke Defendants’ media and public relations “strategy” and “script.”
For example, in an email from President Brodhead to Vice President for Student
Affairs Larry Moneta, the President states:
“Friends: a difficult question is, how can we support our
lacrosse players at a devastatingly hard time without
seeming to lend aid and comfort to their version of the
story? We can’t do anything to side with them, or even,
if they are exonerated, to imply that they behaved with
honor. The central admin can[’]t, nor can Athletics.”
Exhibit 2 (President Brodhead’s email to VP Larry Moneta) (emphasis supplied). In
response to President Brodhead’s email, Vice President Moneta wrote: “The dilemma,
of course, is with public acknowledgement of our support without feeding the
‘coverup’ [sic] allegations…” See id. (Email from VP Moneta to President Brodhead
dated April 10, 2006).

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Later, President Brodhead reported to Provost Lange that he and Chairman of
the University’s Board of Trustees Robert Steel have been faithful to the PR “script”
saying:
“I have been careful not to say that I am confident the
players are innocent though certainly a large number of them are
of the criminal charge. I continue to her [sic] this message
and so does Bob Steel, who will beat up on me about it
again later today.”
Exhibit 3 at 2 (Emails from President Brodhead to Provost Lange dated April 24,
2006) (emphasis supplied). President Brodhead reminds Provost Lange that all of
them “need to be on script” regarding Plaintiffs and their teammates. See id. at 1.1
But that is not all. Further proof of Duke’s media strategy has recently been
established in former Athletic Director Joe Alleva’s sworn testimony. During his
deposition on January 20, 2012, Mr. Alleva testified that he made positive and truthful
statements about Plaintiffs and their teammates’ character at the University’s press
conference on March 28, 2006. Mr. Alleva testified that he was “crucified”
immediately afterwards for making those statements by President Brodhead himself

Plaintiffs did not obtain any of this correspondence among the University’s senior leadership (attached as
Exhibit 2 and Exhibit 3) until weeks after Plaintiffs’ Response to the Duke Defendants’ Motion for a
Protective Order was due.
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and in front of the Crisis Management Team, all of whom knew how “off-message”
Mr. Alleva’s truthful, positive statements about Plaintiffs were.
The University’s “strategy” and “script” of course, were designed by the
consulting firms targeted by Plaintiffs’ subpoenas. Because Plaintiffs’ suspensions
were driven by the University’s “strategy,” Plaintiffs’ subpoenas seeking documents
relating to that “strategy” is well within the scope of discovery and this Court’s two
Orders.
From the beginning of this litigation, Plaintiffs alleged that Plaintiffs’
suspensions were driven entirely by Duke’s decision to protect its corporate brand at
the expense of the Plaintiffs’ good names and their reputations. See, e.g., SAC ¶¶ 45155, at 139-40 and ¶¶ 693-702 at 220-28; see also id. ¶ 91 at 34-35; ¶¶ 1223-28 at 384-86;
¶¶ 85-92 at 32-35; and ¶¶ 713-18 at 226-27. Plaintiffs even embedded footage of
Duke’s President executing Duke’s media strategy on nationally broadcast interviews
in which he announces that Ryan McFadyen was suspended without notice or
hearing, thereby subjecting him to national and international public obloquy on the
eve of indictments. SAC, ATTACHMENT 17 at 221-22 (video of President
Brodhead announcing that the University suspended Ryan McFadyen indefinitely).
Finally, Duke is plainly aware that the materials sought in Plaintiffs’ subpoenas
to Duke’s public relations consultants will produce materials that evince their willful
and wanton conduct, their malice, their deliberate indifference to Plaintiffs’ rights, and
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their participation in and ratification of that wrongful conduct by their officers,
directors, and managing employees. The materials are therefore directly relevant to
Plaintiffs’ entitlement to punitive damages, for the egregiously wrongful conduct
accompanying the conduct giving rise to Plaintiffs’ claims for breach of contract and
of the covenant of good faith and fair dealing.
Plaintiffs have not violated Rule 26 or the Court’s two Orders in any way. The
Duke Defendants ignore this Court's rule limiting reply briefs solely "to discussion of
matters newly raised in the response." LR 7.3. Instead, they abandon most of their
opening arguments (e.g., claims of "confidential commercial information,"
"harassment," and the need for a "general protective order") and fashion entirely new
arguments to support their purported need for a protective order preventing Plaintiffs
from discovering the materials sought in their subpoenas. Such shifting of claims and
contentions in a reply brief is precisely what LR 7.3(h) forbids. Thus, even if Duke's
new contentions had merit (and they do not), they would be entitled to no weight in
this Court's consideration of Duke's unfounded motion for protection from
subpoenas directed to other entities.
The Motion should be denied.

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Dated: February 3, 2012

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Robert Ekstrand
Robert C. Ekstrand (N.C. Bar No. 26673)
811 Ninth Street, Suite 260
Durham, North Carolina 27705
[e-mail]
Tel: [phone]
Fax: [phone]
Counsel for Plaintiffs

EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Sparks
Stefanie A. Sparks (N.C. Bar. No. 42345)
811 Ninth Street, Suite 260
Durham, North Carolina 27705
[e-mail]
Tel: [phone]
Fax: [phone]
Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.

1:07 CV 953

DUKE UNIVERSITY, et al.
Defendants.

CERTIFICATE OF SERVICE
The foregoing Plaintiffs’ Response to the Duke Defendants’ Allegations
Concerning Count 21 was filed with the Clerk of Court via the Court’s CM/ECF
system on February 3, 2012, which automatically serves the filing upon all parties to
this action by delivering notice of and a link to the filing to the e-mail address that
counsel of record have registered in the CM/ECF system for service.
Dated: February 3, 2012

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Sparks
Stefanie A. Sparks (N.C. Bar No. 42345)

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