MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 279

REPLY, filed by Defendant DUKE UNIVERSITY, to Response to #271 MOTION for Protective Order on Confidentiality and Prospective Sealing Order filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A- Email from Wells to Ekstrand, #2 Exhibit B- Email from Ekstrand to Ellis, #3 Exhibit C- Email from Wells to Ekstrand, #4 Exhibit D- Email from Sun to Ekstrand, #5 Exhibit E- Email from Sun to Ekstrand, #6 Exhibit F- Letter from Smith to Segars dated May 3, 2012)(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.,
Defendants.

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REPLY IN SUPPORT OF MOTION
FOR ENTRY OF PROTECTIVE
ORDER ON CONFIDENTIALITY
AND PROSPECTIVE SEALING
ORDER BY DUKE UNIVERSITY

Duke showed in its moving brief that entry of the protective order it proposed
(“Duke Order”) is supported by the precedents of this Court and other courts. Plaintiffs
rely on precedent that does not apply to blanket protective orders. Such orders are
routinely granted upon a generalized showing of good cause, and Duke has made that
showing. Entry of the Duke Order is warranted in this case.
ARGUMENT
I.

DUKE’S CATEGORIES OF “CONFIDENTIAL INFORMATION” ARE
PROTECTIBLE UNDER RULE 26(c).
Plaintiffs challenge Duke’s proposed categories of “Confidential Information”

with the same overarching arguments: that Rule 26(c) does not protect the information at
issue and that Duke has neither identified specific documents in each category nor
demonstrated prejudice from the release of those documents. See Pls.’ Br. at 3-9, 14 [DE
278]. Both of these arguments fail.1
1

Plaintiffs list “personal financial information” among the categories they challenge, but
they fail to explain their objection to it. See Pls.’ Br. at 3. Plaintiffs do, however, cite

A.

Plaintiffs’ Reading Of Rule 26(c) Is Unduly Narrow.

Plaintiffs contend that a protective order entered under Rule 26(c) is limited to
information required by statute to be confidential (e.g., health and educational records)
and information expressly mentioned in Rule 26(c), such as trade secrets. See Pls.’ Br. at
3-4. But Rule 26(c) is not so limited. To the contrary, “a court may be as inventive as
the necessities of a particular case require in order to achieve the benign purposes of the
rule.” 8A Charles Alan Wright, et al., Fed. Prac. & Proc. § 2036; see Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 36 (1984). Moreover, although Plaintiffs complain that Duke
“offers no authority” that its categories are protectable under Rule 26(c) (see Pls.’ Br. at
3), Plaintiffs offer no rebuttal to the fourteen cases cited by Duke that show just that. See
Duke Br. at 6-11 [DE 272].
B.

Plaintiffs Ignore This Court’s Relevant Precedent.

Under this Court’s precedent, blanket protective orders are to be approved upon a
“generalized showing of good cause,” which is met where the allegations show that
discovery will involve confidential information and the proposed order requires that
material be designated confidential in good faith, allowing for opposing parties to contest
the designation. See Hanesbrands Inc. v. Van Stevenson, No. 1:09-cv-490, 2010 WL
1286669, at *3 (M.D.N.C. Mar. 29, 2010); Haas v. Golding Transp., Inc., 1:09-cv-1016,
2010 WL 1257990, at *5-6 (M.D.N.C. Mar. 26, 2010); Longman v. Food Lion, Inc., 186

Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 411 (M.D.N.C. 1991), where the court
held that such information (i.e., tax returns) would be treated as confidential.
2

F.R.D. 331, 333 (M.D.N.C. 1999); Parkway Gallery Furniture, Inc. v. Kittinger /
Pennsylvania House Group, Inc., 121 F.R.D. 264, 267-68 (M.D.N.C. 1988). This
standard is met here. See Duke Br. at 3-11.
As Plaintiffs tell it, Duke’s proposal should be rejected because Duke did not
identify or produce the specific documents in dispute and did not explain the harm that
would result from their disclosure. See Pls.’ Br. at 4. To be sure, courts have held that
the information sought to be protected under the Duke Order is categorically sensitive,
that its public disclosure would be harmful and thus that it is subject to protection under
Rule 26(c). See Duke Br. at 6-11 (citing cases relating to proposed categories).
Moreover, this Court does not require specific document-by-document
identification or demonstrations of harm to enter blanket protective orders. In arguing
otherwise, Plaintiffs cite cases that do not apply. In Kinetic Concepts, Inc. v. Convatec
Inc., and In re Wilson, the courts required a showing of harm where the parties disputed
whether specific material should be produced at all to a party’s in-house personnel. See
In re Wilson, 149 F.3d 249, 252 (4th Cir. 1998) (requiring that party “resisting discovery
must establish . . . that it will be harmed by disclosure”); Kinetic Concepts, No. 1:08-cv918, 2010 WL 1947605, at *1, 3-4 (M.D.N.C. May 13, 2010) (requiring “specific
demonstration of facts” where party is “resisting discovery”). Similarly, in Brittain, the
court approved a protective order that prohibited disclosure of specific material to a
party’s in-house personnel. See 136 F.R.D. at 411, 417. Plaintiffs’ primary argument is
based on cases that address the discoverability of information in the first instance, not (as
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here) whether categories of information that will be exchanged between the parties
should be protected against public disclosure.
Moreover, Plaintiffs demand (without citation) that the Duke Order be denied
because Duke did not provide them with “examples” of confidential material—notably,
before any protective order was entered and before Plaintiffs had served comprehensive
discovery requests.2 See Pls.’ Br. at 3-4. Under Plaintiffs’ proposal, Duke would have to
(i) predict the specific discovery requests Plaintiffs will serve; (ii) search for, review and
identify the specific confidential documents that would be responsive to those
hypothetical requests; (iii) allow Plaintiffs to review those confidential documents, in the
absence of a protective order; and (iv) demonstrate in motion practice the harm arising
from public disclosure of those documents (which under their scheme, Plaintiffs would
already have, with no assurance of confidentiality). Plaintiffs’ approach is unreasonable
and unsupported, and it is properly rejected.
C.

Plaintiffs’ Specific Challenges To Duke’s Categories Also Fail.

Plaintiffs’ specific challenges to two of Duke’s proposed categories also fail.
First, they complain that information “relating to discipline” would improperly “sweep all
material relevant to [Plaintiffs’] claims into the protective order’s prospective sealing
provisions.” Pls.’ Br. at 4. The Duke Order preserves the confidentiality of information
exchanged between the parties but, consistent with this Court’s precedent, requires that a
party independently demonstrate good cause before filing non-discovery-related material

2

Plaintiffs did not serve comprehensive document requests until April 10, 2012.
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under seal. See infra. p. 7. Plaintiffs also object that information related to discipline by
a “public authority” should not be confidential, but that phrase is not intended to cover
public records. See Pls.’ Br. at 5. Rather, for example, internal discussions among Duke
student affairs personnel regarding a student’s arrest or prosecution also constitute
“information relating to discipline by a public authority,” would not be publicly available,
and thus should remain confidential. See Duke Br. at 7-8 (discussing basis for separate
“disciplinary information” category).
Second, Plaintiffs argue that information related to Duke “police investigations”
should not be confidential because Duke did not investigate Crystal Mangum’s
allegations, but Plaintiffs’ interpretation of this category is unduly narrow. See Pls.’ Br.
at 9. Other sensitive Duke police information unrelated to those allegations may be
produced, including that reflecting security procedures related to on-campus protests and
lacrosse team practices and games, and that material should remain confidential. See
Duke Br. at 10-11.3
II.

PLAINTIFFS’ TIMELINESS ARGUMENT FAILS.
Plaintiffs repeatedly allege that Duke did not timely move for a protective order

and that the Duke Order, including its provisions regarding insurance policies, thus
should not be accepted. Pls.’ Br. at 7-8. This argument fails for three reasons.

3

Plaintiffs challenge the confidentiality of Board of Trustees meeting minutes based on
an article from Duke’s student newspaper. See Pls.’ Br. at 7 n.2. But the very premise of
that article is that substantive meetings of the Board have been confidential for many
years. Those minutes should be included in the protective order. See Duke Br. at 9-10.
5

First, Plaintiffs acknowledge that some version of a protective order is necessary
to protect their own educational and health information. See Pls.’ Br. at 1. But unlike
Duke, Plaintiffs have never moved for a protective order. Plantiffs can hardly claim that
the Court should reject Duke’s position because of an alleged “delay” in filing a motion
but accept the position of Plaintiffs, who have never filed one.
Second, any alleged “delay” was not solely caused by Duke. Duke first proposed
a protective order to Plaintiffs on October 7, 2011. See Email from Wells to Ekstrand
(Ex. A). Plaintiffs did not provide Duke with a counter-proposed draft until November
30—nearly two months later. See Email from Ekstrand to Ellis (Ex. B). Duke promptly
responded with a revised draft on December 1. See Email from Wells to Ekstrand (Ex.
C) (rejecting Plaintiffs’ proposed “bridge agreement”). Because Plaintiffs provided no
drafts in response, Duke again prompted them by sending a copy of the Carrington
protective order on February 10, 2012. See Email from Sun to Ekstrand (Ex. D).
Plaintiffs did not provide a mark-up until March 3—nearly a month later, and over three
months after Plaintiffs had sent their prior draft. See Pls.’ Br., Ex. 1. And on March 16,
Duke responded with its final proposal, to which Plaintiffs did not respond. See Sun
Email to Ekstrand (Ex. E). Duke has been diligent in negotiating with Plaintiffs.4

4

Plaintiffs’ delay is evidenced in other ways. Although the Court ordered Plaintiffs to
file their opposition by April 26, 2012 [see DE 277], they did not do so until April 27,
with no explanation for their delay and without moving for leave to file a brief out of
time. And although Plaintiffs committed to “submit a clean version of their proposed
protective order to the Court,” Duke is not aware that any such version has been
submitted. See Pls.’ Br. at 14 n.3.
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Third, Plaintiffs repeatedly cite Brittain v. Stroh Brewery Co. There (as here),
plaintiffs opposed defendant’s motion for protective order by arguing that it was
untimely, but the court rejected plaintiffs’ argument. See Brittain, 136 F.R.D. at 412-14
(holding that where party attempts to negotiate protective order in good faith, a motion to
enter that order is timely if made within time for opposing motion to compel discovery at
issue). Here, Duke in good faith initiated and sustained the parties’ negotiations, and
Plaintiffs never moved to compel Duke’s responses because they had no basis to do so.
III.

PLAINTIFFS IGNORE DUKE’S PROSPECTIVE SEALING PROVISIONS.
Plaintiffs argue that Duke ignored the Court’s precedent regarding the sealing of

judicial records. Pls.’ Br. at 9-11. Under this precedent, parties may not file nondiscovery-related material under seal without first demonstrating the need for confidential
protection and receiving the Court’s permission. See Haas, 2010 WL 1257990, at *6-8.
Yet that is exactly what is required by paragraph 21(a) of the Duke Order, which
this Court approved in Carrington. See Duke Order ¶ 21(a) (Ex. A to Duke Br.); Duke
Br. Ex. C. Plaintiffs fail to mention that provision in their brief—a provision that is
tailored to meet the Court’s precedent. Moreover, in their version, Plaintiffs strike this
provision entirely, rendering their own proposal unacceptable under the very cases they
cite. See Duke Br. at 12.
IV.

DUKE’S PROPOSED PROCEDURES ARE APPROPRIATE.
A.

Parties Should Be Allowed To Redact Irrelevant Confidential
Information.

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Plaintiffs argue that Duke should not be allowed to redact irrelevant confidential
information, even FERPA-protected information relating to other students. See Pls.’ Br.
at 11-12. Duke’s proposal is supported by good cause. For example, in response to
Plaintiffs’ recent discovery requests, Duke identified charts summarizing disciplinary
action taken against dozens of students, where both Plaintiffs and the other students are
identified. Student disciplinary information is at the heart of FERPA’s protections, and
Plaintiffs are not entitled to know the names of other students who have been disciplined
by Duke. See Ragusa v. Malverne Union Free School Dist., 549 F. Supp. 2d 288, 293
(E.D.N.Y. 2008) (allowing redacted versions of FERPA-protected records).
B.

Duke’s Timing Provisions Are Reasonable.

Plaintiffs complain that “Duke offers no facts” showing that counsel should have
30 days after a deposition transcript is available to make confidentiality designations. See
Pls.’ Br. at 12. For their part, Plaintiffs claim that their 10-day proposal means, in effect,
that designations would be due 18-20 days after the deposition itself, since it allegedly
takes 8-10 days for the transcript to become available. Yet the deposition of Breck
Archer took place on April 19, 2012, and Plaintiffs still have failed to provide their
promised designations—25 days later. See Letter from Smith to Segars dated May 3,
2012 (Ex. F). Plaintiffs’ 10-day proposal—itself unsupported by any “facts”—should not
be adopted when Plaintiffs themselves have not provided such designations within that
time period. Further, because Plaintiffs have not explained why a party should be given

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an unlimited time to designate its document productions as confidential, paragraph 15 of
the Duke Order also should be adopted. See Pls.’ Br. at 12.5
C.

Plaintiffs’ Proposal Regarding Alleged “Unlawful” Disclosure Of
Confidential Documents Is Unreasonable.

To support their proposal that documents should remain confidential where they
allegedly were disclosed “through a violation of law,” Plaintiffs argue that “confidential
matter does not lose its status by a party-opponent’s wrongful public disclosure of that
material.” See Pls.’ Br. at 12-13. But that scenario already is covered by Duke’s
proposal. Documents disclosed in violation of the protective order—which binds the
parties—will remain confidential. See Duke Order ¶ 4. Moreover, under the Duke
Order, any party may designate a document confidential, even if that party did not
produce the document. See id. at ¶ 6.
D.

Parties Should Not Be Forced To Itemize All Confidential Information.

Plaintiffs cite no authority to support their demand that parties be “required to
itemize all confidential information that appears on the face of any document.” See Pls.’
Br. at 13. Further, the purpose of a privilege log is to allow parties to evaluate privilege
claims regarding documents they, by definition, are not allowed to see. That concern is
not present with respect to documents marked confidential, which are exchanged

5

Plaintiffs also argue that the Court’s entry of a protective order in Carrington that is
identical to the Duke Order is “irrelevant.” Pls. Br. at 2-3. But there is no reason to
impose different time periods for confidentiality designations when many depositions are
cross-noticed and attended by counsel in both cases, nor any reason to establish different
definitions of “Confidential Information” such that a document produced as confidential
in Carrington must be deemed not confidential here.
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between the parties. Moreover, if Plaintiffs do not believe a document should be marked
confidential, they are entitled to challenge that designation. See Duke Order ¶ 17.
E.

Plaintiffs Do Not Support Their Proposal Regarding Documents
Produced For Inspection.

Where a party elects to produce documents for inspection (often when there is a
large volume of material), Plaintiffs believe that the producing party should stamp every
document “confidential,” whether the inspecting party copies it or not. See Pls.’ Br. at
13. There is no reason why a party should be forced to stamp its own (often original)
documents “confidential” when no copies actually leave the party’s possession.6
CONCLUSION
For the foregoing reasons, and the reasons stated in its opening brief, Duke
respectfully requests that the Court grant its Motion for Entry of Protective Order on
Confidentiality and Prospective Sealing Order and enter a protective order in the form
attached as Exhibit A to Duke’s Brief in Support.
This the 14th day of May, 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]
6

In their brief, Plaintiffs do not contest Duke’s proposal (i) prohibiting release of
confidential information to non-parties (Duke Order ¶ 5); (ii) requiring that individuals
sign a confidentiality agreement (id. at ¶ 1); (iii) requiring that modifications be made
only upon court order (id. at ¶ 26); and (iv) allowing parties to preserve the
confidentiality of the identities of consulting experts (id. at ¶ 13(e)).
10

Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
James M. Weiss
N.C. State Bar No. 42386
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 May 14, 2012, I electronically filed the foregoing
Reply in Support of Motion for Entry of Protective Order on Confidentiality and
Prospective Sealing Order 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 14th day of May, 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

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