MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 294

MOTION for Protective Order for the Deposition of Plaintiffs' Litigation Counsel by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (Attachments: #1 Exhibit Deposition Subpoena to Stefanie Smith, #2 Exhibit Smith's Objections to Subpoenas, #3 Exhibit Deposition Subpoena to Robert Ekstrand, #4 Exhibit Robert Ekstrand and Ekstrand & Ekstrand LLP's Objections to Subpoenas, #5 Exhibit Document Subpoena to Ekstrand & Ekstrand LLP, #6 Exhibit Document Subpoena to Robert Ekstrand, #7 Exhibit Document Subpoena to Stefanie Smith)(EKSTRAND, ROBERT)

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

RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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1:07-cv-953-JAB-JEP

MOTION FOR A PROTECTIVE ORDER RE: DUKE’S
SUBPOENAS TO TAKE THE DEPOSITION OF
PLAINTIFFS’ LITIGATION COUNSEL
Plaintiffs Ryan McFadyen, Matthew Wilson, and Breck
Archer, respectfully move for a protective order quashing Duke
University’s subpoena to take the deposition of Plaintiffs’ trial
counsel, Robert Ekstrand and Stefanie Smith (“Ekstrand” and
“Smith”), in the related case of Carrington, et al. v. Duke University, et
al., No. 1:08-cv-119-JAB-JEP (M.D.N.C. 2007) (the “Carrington
Litigation” or Carrington). Further, Plaintiffs ask this Court to Order Duke to

cease all other efforts to circumvent the attorney-client and work
product privileges in both this action and in Carrington.

FACTS
Robert C. Ekstrand and Stefanie A. Smith (formerly Stefanie
A. Sparks) have been and continue to be the only counsel of record
for the Plaintiffs in this action (hereinafter, “the McFadyen
Litigation” or McFadyen). Early on in the proceedings, this Court designated the
McFadyen litigation and the Carrington litigation as related cases.
Since September, 2011, discovery in McFadyen and Carrington has
proceeded solely upon the claims in those cases that do not involve
the City of Durham Defendants. [McFadyen Doc. # 218, Carrington
Doc. #192.] All claims against the City of Durham Defendants are
stayed pending the resolution of the City Defendants’ appeal to the
Fourth Circuit of this Court’s denial of their motions to dismiss.
[McFadyen Doc. # 218, Carrington Doc. #192.]
Ekstrand & Ekstrand LLP (the “Firm”) represented the

McFadyen Plaintiffs and nearly all of the Carrington Plaintiffs in
connection with the police investigation that gave rise to the claims
asserted in McFadyen and Carrington. The Firm’s common
representation of those individuals was governed by a Common
Representation Agreement, which protects those individuals’
communications with the Firm. The McFadyen Plaintiffs are all
signatories to the Common Representation Agreement, they decline
to waive their rights under the agreement, the protections of the
attorney-client privilege, or the protections of the work product
privilege. The Firm employed Ekstrand and Smith throughout the
Firm’s representation of the McFadyen Plaintiffs and the Carrington
Plaintiffs, the Firm has continued to employ them since that time,
including the Firm’s initiation of the McFadyen Litigation on
December 18, 2007. The work product privileges, both fact and
opinion work product, attaches to the work, opinions, mental
impressions and thought processes of Ekstrand and Smith
throughout that time period. No holder of protections afforded by

the work product privilege, including Ekstrand, Smith, and the
Firm, have agreed to waive the protections of the work product
privilege.
On August 17, 2012, nearly five years after the McFadyen
Plaintiffs filed their Complaint, Duke University issued a subpoena
commanding Smith to appear and testify at a deposition in the
Carrington Litigation on September 4, 2012. (Exhibit 1.)

Written

objections to the Subpoena directed to Smith were served on Duke
on August 31, 2012. (Exhibit 2.)
On February 14, 2012, Duke issued similar subpoenas to
Ekstrand and the Firm, one of which commanded Ekstrand to
appear and testify at a deposition at the office of Duke’s lawyers in
Cary, North Carolina on March 20, 2012.

(Exhibit 3.) Ekstrand

was not available to be deposed on March 20, 2012, and, regardless,
substantially more time than Duke’s subpoenas allotted was required
for Ekstrand and the Firm to ascertain whether, apart from
themselves, the holders of rights, protections, and privileges

implicated by Duke’s subpoenas wished to waive them or assert
them in response to Duke’s subpoenas.

Written objections to

Duke’s subpoena to take Ekstrand’s deposition were timely served
on Duke. (Exhibit 4.)1
Duke withdrew the subpoena for the deposition of Ekstrand,
and never reissued an amended subpoena to take Ekstrand’s
deposition.

Rather, Duke’s counsel recently asserted that Duke

intends to take Ekstrand’s deposition in conjunction with the
deposition of Smith on September 4, 2012, without serving a
subpoena identifying the time or place of the deposition.
In response to Duke’s declared intention to depose him,
Ekstrand made multiple requests for a copy of a subpoena to take
his deposition on September 4, 2012. Duke refused to produce one.
1

Duke also served several subpoenas for production of
documents on the Firm, Ekstrand, and Smith. (Exhibit Nos. 5, 6, and
7.) Written objections to Duke’s subpoenas for production of
documents were timely served by the Firm, Robert Ekstrand, and
Stefanie Smith. (Exhibit Nos. 2 and 4.) The written objections were
parallel to those asserted in response to Duke’s subpoena for the
deposition of Robert Ekstrand and Duke’s subpoena for the
deposition of Stefanie Smith.

Instead, Duke’s counsel could only produce a Notice of Deposition
of Ekstrand for September 4, 2012, in the Carrington action.
However, Ekstrand is not a party to either the Carrington or the
McFadyen action, and, as such, Duke must issue a subpoena to
compel his appearance and testimony at a deposition.

Duke

incorrectly assumes that its withdrawn subpoena to take Ekstrand’s
deposition on March 20, 2012, is sufficient to compel his testimony
on September 4, 2012, at a different location.
Of course, any personal knowledge that Ekstrand and Smith
may have that may be relevant to the claims going forward in
Carrington are protected by the work product and attorney-client
privileges. Any such knowledge is also protected by the Common
Representation Agreement and the common-interest doctrine. After
conducting an inquiry of the holders of privileges implicated by
Duke’s subpoenas or their representatives, no holder of the rights,
protections, or privileges arising from those sources has waived any
right, protection, or privilege. To the contrary, they have all directed

Ekstrand, Smith, and the Firm to assert their rights, protections, and
privileges in connection with all of the subpoenas Duke issued to
Ekstrand, Smith, and the Firm.
Finally, Ekstrand and Smith arranged a conference with
Duke’s counsel to resolve the issues raised by Duke’s subpoenas
issued in February. During the conference, Ekstrand asked Duke’s
lawyers what non-privileged matter Duke wished to inquire about at
his deposition,2 and Duke’s counsel refused to identify any subject
or subjects that Duke would inquire about in any deposition of
Ekstrand or Smith. The only response any of Duke’s lawyers gave to
Ekstrand’s question was, “we don’t have to tell you that.” After
Ekstrand and Smith pressed that inquiry further, it became clear that
Duke’s lawyers had no specific answer to that rudimentary question.
In any event, Duke’s lawyers refusal to identify the subject(s) about
which Duke wished to examine the McFadyen Plaintiffs’ trial counsel
foreclosed any possibility for resolving this matter without involving
2 At the time, Duke had not issued its subpoena for the deposition of
Smith, and would not do so for nearly six months.

the Court.
Therefore, counsel for the McFadyen Plaintiffs have sought an
order in the Carrington litigation quashing Duke’s subpoenas, and the
McFadyen Plaintiffs seek similar relief by way of this motion for a
protective order in this litigation. As explained below, Ekstrand and
Smith are authorized to make this motion prior to the time for the
depositions, and the motion is therefore timely, pursuant to the rules
adopted by this Court in connection with similar efforts to depose a
party-opponent’s trial counsel. N.F.A. Corp. v. Riverview Narrow
Fabrics, Inc., 117 F.R.D. 83 (M.D.N.C. 1987); Static Control Components,
Inc. v. Darkprint Imaging, 201 F.R.D. 431 (M.D.N.C. 2001).

ANALYSIS
The Federal Rules of Civil Procedure provide near absolute
protection of an attorney's mental impressions or opinion work
product. Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d
730 (4th Cir. 1974), cert. denied, 420 U.S. 997 (1975). Among other

things, Rule 45 provides that a court must quash any subpoena
compelling disclosure of attorney-client communications, work
product, or any “other privileged matter.” Fed. R. Civ. P. Rule
45(c)(3)(A)(iii). Rule 26 of the Federal Rules of Civil Procedure
similarly requires the Court to issue protective orders when
necessary to prevent the disclosure of privileged matters, work
product, and any other matter that would reveal the mental
impressions, conclusions, opinions, or legal theories of a party’s
attorney or other representative concerning the litigation.”
Specifically, Rule 26(b)(1) prohibits discovery of privileged matters
and Rule 26(c)(3)(A) prohibits discovery of all trial preparation
materials. Further, Rule 26(c)(3)(B) requires that, if a litigant has
shown that it has a substantial need for certain trial preparation
material and cannot obtain their substantial equivalent by other
means, the court may not permit but instead “must protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the

litigation.”)
Thus, pursuant to Rule 45 of the Federal Rules of Civil
Procedure, the Court must quash Duke’s subpoenas purporting to
compel the deposition testimony of Ekstrand and Smith. And
pursuant to Rule 26 of the Federal Rules of Civil Procedure, the
Court must provide similar relief in the form of a protective order
providing that that the discovery sought by Duke’s subpoenas may
not be had, and “protect[ing] against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s
attorney or other representative concerning the litigation.”)
Plaintiffs are entitled to the entire scope of the protections
contemplated by Rule 26 and Rule 45 because Duke’s subpoena(s)
unequivocally seek disclosure of matters given the highest degree of
protection under the Rules. Specifically, Duke’s subpoenas purport
to compel Ekstrand and Smith -- the only attorneys of record in the
McFadyen litigation -- to appear and give testimony regarding the
Carrington Plaintiffs’ claims that overlap in whole or in part with the

claims Ekstrand and Smith have asserted against Duke on behalf of
the McFadyen Plaintiffs, as well as an additional claim that Ekstrand
and Smith may still assert against Duke going forward.
While the Rules do not expressly prohibit discovery from any
particular source per se, the Rules do expressly prohibit discovery of
information that is uniquely in the possession of a party’s counsel.
Thus, discovery from counsel is exceptionally rare, and if permitted,
is narrowly tailored to avoid disclosure of an attorney’s work
product, and only under circumstances where the party seeking
disclosures can prove that (1) no other means exist to obtain the
information; and that (2) the information sought is (a) relevant, (b)
nonprivileged, and (c) crucial to the preparation of the case. N.F.A.
Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 84-85 (M.D.N.C.
1987); Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D.
431, 434 (M.D.N.C. 2001); Nationwide Mut. Ins. Co. v. Home Ins. Co.,
278 F.3d 621, 628-629 (6th Cir. 2002); Shelton v. Am. Motors Corp., 805
F.2d 1323, 1327 (8th Cir. 1986).

As such, Rules 26 and 45 of the Federal Rules of Cvil
Procedure explicitly require trial courts to issue orders necessary to
prevent the disclosure of privileged information, particularly the
opinions and work product of counsel.

F. R. Civ. P. Rule

45(c)(3)(A)(iii) (requiring district courts to quash any subpoena that
“requires the disclosure of privileged or other protected matter”); id.
Rule 26(b)(1) (prohibiting discovery of privileged matters); id. Rule
26(c)(3)(A) (prohibiting discovery of trial preparation materials); id.
Rule 26(c)(3)(B) (requiring courts to issue any protective order
necessary to meet the obligation that all courts “must protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the
litigation.”)
For all for all of the reasons this Court explained long ago,
the reasons for the Rules’ prohibition against any attempt by a party
to obtain discovery directly from a party-opponent’s trial counsel
have greatest force when a party seeks to compel the testimony of a

party-opponent’s trial counsel:
[E]xperience
teaches that
countenancing
unbridled depositions of attorneys constitutes an
invitation to delay, disruption of the case,
harassment, and perhaps disqualification of the
attorney. In addition to disrupting the adversarial
system, such depositions have a tendency to lower
the standards of the profession, unduly add to the
costs and time spent in litigation, personally
burden the attorney in question, and create a
chilling effect between the attorney and client.
For these reasons, it is appropriate to require the
party seeking to depose an attorney to establish a
legitimate basis for requesting the deposition and
demonstrate that the deposition will not
otherwise prove overly disruptive or burdensome.
Because deposition of a party’s attorney is usually
both burdensome and disruptive, the mere
request to depose a party’s attorney constitutes
good cause for obtaining a Rule 26(c) protective
order unless the party seeking the deposition can
show both the propriety and need for the
deposition. This procedure is superior to
requiring the attorney to submit to a deposition
and make his objections at that time.
N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 84-85
(M.D.N.C. 1987) (internal citations and quotations omitted); Static
Control Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431, 434

(M.D.N.C. 2001); Shelton v. American Motors Corp., 805 F.2d 1323,
1327 (8th Cir. 1986).
In adopting that rule, the Middle District adopted the
reasoning expressed in Walker v. United Parcel Services (among others),
which held that:
Short of prohibiting the deposition, it is hard to
imagine how to protect UPS from revelation of
its attorney’s mental impressions, opinion, legal
theories, or litigation strategy. Such revelations
should not be permitted absent a strong showing
of necessity or prejudice or hardship in the
preparation of plaintiffs’ case. … Moreover, if
the deposition were to proceed, rulings would
occasion significant further delays. Further
controversies over privilege and work product
claims would inevitably require further
imposition on the resources of the Court . . . .
87 F.R.D. 360, 362 (E.D. Pa. 1980) (internal citations omitted) citing
Hickman v. Taylor, 329 U.S. 495, 509 (1947).
A corollary to the rule in this District is that attorneys need
not first submit to a deposition and assert objections at that time for
the obvious reasons that, as this Court explained, deposing an

party-opponent’s trial counsel “merely embroils the parties and the
court in controversies over the attorney-client privilege and more
importantly, involves forays into the area most protected by the
work product doctrine--that involving an attorney’s mental
impressions or opinions.” N.F.A., 117 F.R.D. at 85 citing Shelton,
805 F.2d at 1327. Moreover, this Court expressly “declined to
follow those cases which hold that a motion for a protective order
or a motion to quash is prematurely made prior to the deposition
and that the attorney must raise his particular objections at the
deposition.” N.F.A., 117 F.R.D. at 85, n.1. “A request to depose a
party's litigation counsel, by itself, constitutes good cause for
obtaining a Fed. R. Civ. P. 26(c) protective order and further, that
the motion may, and should, be filed prior to the scheduled
deposition.” Static Control Components, Inc. v. Darkprint Imaging, 201
F.R.D. 431, 434 (M.D.N.C. 2001) (citing with approval N.F.A., 117
F.R.D. at 85)
Consistent with these rules, Ekstrand and Smith have

unequivocally asserted that neither will appear to testify in the
absence of a court order compelling them to do so. (Ekstrand made
this representation despite Duke’s failure to produce a subpoena
that had been served on him purporting to compel his appearance
for a deposition on September 4, 2012.) Further, Ekstrand and
Smith have filed a motion to quash Duke’s subpoenas in the
Carrington action pursuant to Rule 45 of the Federal Rules of Civil
Procedure.
In addition to the foregoing measures, Ekstrand, Smith, and
the McFadyen Plaintiffs now seek, through this motion, an order
securing all of the protections and all of the relief available to them
under Rule 26 of the Federal Rules of Civil Procedure. Of course,
they are entitled to all of the protections and relief available under
Rule 26 for the same reasons that they are entitled to the protections
and relief available under Rule 45.

Duke seeks disclosure of

privileged communications and work product, including “the mental
impressions, conclusions, opinions, or legal theories of a party’s

attorney or other representative concerning the litigation,” which
courts “must” protect from disclosure in any event. To the extent
that Ekstrand or Smith may have personal knowledge relevant to
the claims going forward that would not reveal a privileged
communication or their mental impressions, conclusions, opinions,
or legal theories, Duke cannot show what the Rules require; namely,
that (1) no other means exist to obtain the information it seeks to
obtain from Ekstrand and Smith; and that (2) the information Duke
seeks to obtain from Ekstrand and Smith is (a) relevant, (b)
nonprivileged, and (c) crucial to the preparation of Duke’s defense
to the claims now proceeding against Duke in the Carrington
litigation. N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D.
83, 84-85 (M.D.N.C. 1987); Static Control Components, Inc. v. Darkprint
Imaging, 201 F.R.D. 431, 434 (M.D.N.C. 2001); Shelton v. American
Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).
In Hickman v. Taylor, the United States Supreme Court
established the straightforward rule that an attorney’s work product

must be protected from discovery.

The Court explained the

normative basis for this protection by making the unremarkable
observations that:
In performing his various duties, however, it is
essential that a lawyer work with a certain degree
of privacy, free from unnecessary intrusion by
opposing parties and their counsel. Proper
preparation of a client's case demands that he
assemble information, sift what he considers to be
the relevant from the irrelevant facts, prepare his
legal theories and plan his strategy without undue
and needless interference. That is the historical
and the necessary way in which lawyers act within
the framework of our system of jurisprudence to
promote justice and to protect their clients'
interests. This work is reflected, of course, in
interviews,
statements,
memoranda,
correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and
intangible ways -- aptly though roughly termed by
the Circuit Court of Appeals in this case as the
“work product of the lawyer.” Were such
materials open to opposing counsel on mere
demand, much of what is now put down in
writing would remain unwritten. An attorney's
thoughts, heretofore inviolate, would not be his
own. Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal
advice and in the preparation of cases for trial.
The effect on the legal profession would be
demoralizing. And the interests of the clients and

the cause of justice would be poorly served.
Hickman v. Taylor, 329 U.S. 495, 510-511 (U.S. 1947). If allowed to
stand, Duke’s subpoenas would stand the protection the Court
established for an attorney’s work product on its head, and would
turn the normative basis for them inside out. Therefore, pursuant to
Hickman and its progeny, including Rules 26 and 45 of the Federal
Rules of Civil Procedure, this Court “must” issue a protective order
providing that the discovery sought in Duke’s subpoenas “not be
had,” protecting the McFadyen Plaintiffs and their counsel, Ekstrand
and Smith, from any obligation to comply with Duke’s subpoenas,
and prohibiting Duke from engaging in any other, similar attempts
to elicit disclosures that are protected by the work product or
attorney-client privileges.

CONCLUSION
For all of the foregoing reasons, Duke’s subpoena(s) must be
quashed and a protective order should be issued forbidding Duke

from continued efforts to obtain disclosure of the work product of
Stefanie A. Smith, Robert C. Ekstrand, and the law firm of Ekstrand
& Ekstrand LLP, privileged communications to them by any
plaintiff in the McFadyen and Carrington litigation, and information
protected by the Common Representation Agreement and the
common interest protections.
Further, to address Duke’s continuing efforts to invade the
privileges at issue in this motion, it is necessary that this Court’s
Order prohibit Duke from engaging in other efforts to circumvent
the attorney-client privilege and work product doctrine in this case and
in the related proceedings.
Finally, Ekstrand, Smith, and the McFadyen Plaintiffs
respectfully request that the Court order all other and further relief
that the Court deems necessary and proper to address the serious
concerns raised by Duke’s conduct in this matter.

Dated: September 3, 2012.
Respectfully submitted by:
/s/ Robert C. Ekstrand
Robert C. Ekstrand, NC Bar #26673
Ekstrand & Ekstrand LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs, Ryan McFadyen,
Matthew Wilson, and Breck Archer, and
and, in connection with the subpoenas
issued to her, for Stefanie Smith
/s/ Stefanie A. Smith
Stefanie A. Smith, NC Bar #42345
Ekstrand & Ekstrand LLP
811 Ninth Street, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs, Ryan McFadyen,
Matthew Wilson, and Breck Archer, and,
in connection with the subpoenas issued to
him, for Robert Ekstrand

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

RYAN McFADYEN, et al.
Plaintiffs,
v.
DUKE UNIVERSITY, et al.
Defendants.

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1:07-cv-953-JAB-JEP

CERTIFICATE OF SERVICE
On the date electronically stamped below, the foregoing
Motion for a Protective Order Regarding Duke’s Subpoenas for
Deposition of Plaintiffs’ Trial Counsel was filed with the Court’s
CM/ECF System, which will send a Notice of Electronic Filing
containing a link to download the filing to Defendants’ counsel of
record, all of whom are registered with the Court’s CM/ECF
System.

Respectfully submitted,
/s/ Robert C. Ekstrand
Robert C. Ekstrand