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)

EXHIBIT 2
Stefanie Smith’s Objections to Subpoenas

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CARRINGTON, ET AL.,
Plaintiffs,
v.

1:08 CV 119

DUKE UNIVERSITY, ET AL.,
Defendants.

STEFANIE A. SMITH’S OBJECTIONS TO DUKE
UNIVERSITY DEFENDANTS’ SUBPOENA FOR
DOCUMENTS AND SUBPOENA FOR DEPOSITION
TESTIMONY

Pursuant to Rule 45, Stefanie A. Smith (“Respondent”) submits the following
objections to the subpoena to produce documents, information, or objects or to
permit inspection of premises in a civil action served on Stefanie A. Smith on August
17, 2012 and the subpoena for deposition testimony of Stefanie A. Smith also served
on August 17, 2012. Respondent explicitly reserves the right to assert further
objections.
GENERAL OBJECTIONS
1.

Respondent objects to each request to the extent that it seeks information that

is protected from disclosure by the attorney-client privilege, the work product

doctrine, and/or other applicable privileges or protections.
2.

Respondent objects to each request to the extent that it does not state with

reasonable particularity the information requested.
3.

Respondent objects to each request to the extent that it seeks information not

relevant to any claim or defense asserted in this proceeding, not reasonably calculated
to lead to the discovery of admissible evidence, or otherwise beyond the scope of
permissible discovery in this proceeding as authorized by the Federal Rules of Civil
Procedure, the Local Rules, and the standing orders of the Court.
4.

Respondent objects to each request to the extent that it is overly broad,

unduly burdensome, oppressive, redundant, vague, and/or ambiguous.
5.

Respondent objects to each request to the extent that it seeks to impose on

Respondent obligations greater than or different from those imposed under the
Federal Rules of Civil Procedure, or any other applicable law.
6.

Respondent objects to each request to the extent it is a premature contention

request or otherwise purports to require Respondent to identify all facts or evidence
with respect to a particular topic or issue, particularly in connection with Claim 24 in
McFadyen, et al. v. Duke University, et al., where Respondent represents the Plaintiffs.
7.

Respondent objects to each request to the extent it purports to require

Respondent, a non-party to this litigation, to perform an unreasonable search for
information, as such a request is unduly burdensome and oppressive, and where such
a request may be equally available from a party to the litigation.
8.

Respondent objects to each request to the extent it calls for information

protected from disclosure by Federal Rule of Evidence 408.
9.

Respondent objects to each request to the extent that it seeks information

already within Duke University’s knowledge or control, or equally or more easily
available to it, on the grounds that such request is unduly burdensome or oppressive.
10.

Respondent objects to each request to the extent it seeks a response about

which Respondent would have to draw a legal conclusion in order to make a proper
response.
11.

Respondent objects to each request to the extent that it purports to require

disclosure of information not within Respondent’s possession, custody, or control.
12.

Respondent objects to each request to the extent that it purports to require

Respondent to disclose information, which Respondent is required to maintain in
confidence pursuant to an agreement or understanding with any third party.
Respondent will not disclose this information without an appropriate release from any
such third party.

13.

Any response by Respondent will be made without in any way waiving or

intending to waive, but rather, to the contrary, by preserving and intending to
preserve:
(a)

All questions as to the competence, relevance, materiality, and admissibility as

evidence for any purpose of the information or the subject matter thereof, in any
aspect of this or other judicial proceeding, or other administrative proceeding or
investigation;
(b)

The right to object on any ground to the use of any such information, or the

subject matter thereof, in any aspect of this or other judicial proceeding, or other
administrative proceeding or investigation;
(c)

The right to object at any time for any further response to this or any other

request for information or production of documents;
(d)

The right to rely on information discovered or generated subsequent to these

responses; and
(e)

The right at any time to supplement this response.

14.

Any response by Respondent will be made without waiving or intending to

waive, but rather preserving and intending to preserve, her right to object to any other
discovery including without limitation to any other request.

15.

Respondent objects to each request because the subpoenas fail to allow a

reasonable time to comply, especially considered the legal complexities regarding
these subpoenas, and recent events which if necessary, Respondent will provide to the
Court in more detail.
SPECIFIC OBJECTIONS AS TO THE SUBPOENA FOR DOCUMENTS
AND TANGIBLE THINGS
REQUEST #1
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney-client privilege and/or the attorney
work product doctrine, or another applicable privilege or doctrine; and (vii) it seeks
information that has already been produced in discovery.

REQUEST #2
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent;
and (vi) it seeks information that has already been produced in discovery.
REQUEST #3
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; and
(v) it seeks information not within the possession, custody, or control of Respondent;

and (vi) it seeks information that has already been produced in discovery.
REQUEST #4
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other
requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney work product doctrine or another
applicable privilege or doctrine; and (vii) it seeks information that has already been
produced in discovery.
REQUEST #5
Respondent incorporates each of her general objections by reference. Respondent
further objects to this request on the grounds that: (i) it is vague and ambiguous; (ii) it
is overbroad and unduly burdensome, particularly in that it is unlimited as to time; (iii)
it is unduly burdensome in that it seeks information that is cumulative of other

requests or otherwise as accessible to Duke University as it is to Respondent and/or
information already known to Duke University; (iv) it seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence; (v)
it seeks information not within the possession, custody, or control of Respondent; (vi)
it seeks information protected by the attorney-client privilege and/or the attorney
work product doctrine, or another applicable privilege or doctrine; and (vii) it seeks
information that has already been produced in discovery.

SPECIFIC OBJECTIONS AS TO THE SUBPOENA FOR DEPOSITION
TESTIMONY

Respondent Stefanie A. Smith incorporates each of the general objections by
reference. Respondent further objects to this subpoena for testimony on the grounds
that the subpoena: (i) subjects Respondent to undue burden where other less
burdensome means are available under the Federal Rules of Civil Procedure including,
but not limited to, Rule 31; (ii) seeks information that is cumulative of other requests
or otherwise as accessible to Duke University as it is to Respondent, and/or
information already known to Duke University or other parties in this litigation; (iii) is
a premature contention or otherwise purports to require Respondent to identify all
facts or evidence with respect to a particular topic or issue, particularly in connection

with Claim 24 in McFadyen, et al. v. Duke University, et al., where Respondent represents
the Plaintiffs; (iv) seeks information protected by the attorney-client privilege and/or
the attorney work product doctrine, or another applicable privilege or doctrine; (v) is
premature and does not meet the requirement of good cause as this point in
discovery; and (vi) is wholly improper in light of Respondent’s role in McFadyen, et al.
v. Duke University, et al. Additionally, the proposed fee for Respondent will not
accommodate Respondent for her time.

Dated: August 31, 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]

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

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

CARRINGTON, ET AL.,
Plaintiffs,
v.

1:08 CV 119

DUKE UNIVERSITY, ET AL.,

Defendants.

CERTIFICATE OF SERVICE 1

I hereby certify that on August 31, 2012, a copy of the foregoing Objections
was served via electronic mail, pursuant to agreement, to the following counsel of
record:
Richard W. Ellis
[e-mail]

1

 Pursuant
 to
 the
 Court’s
 Order,
 counsel
 in
 McFadyen,
 et
 al.
 v.
 Duke
 University,
 et
 al.,
 1:07-­‐cv-­‐953,
 have
 been

provided
 with
 a
 copy
 of
 these
 Objections
 via
 electronic
 mail.

Dixie T. Wells
[e-mail]

Jeremy M. Falcone
[e-mail]

Paul K. Sun, Jr.
[e-mail]

Thomas H. Segars
[e-mail]

James M. Weiss
[e-mail]

Grant W. Garber
[e-mail]

Meghan S. Thelen
[e-mail]

Christopher Jackson
[e-mail]

Curtis J. Shipley
[e-mail]
Attorneys for Duke University, Robert K. Steel, Richard Brodhead, John Burness, Matthew
Drummond, Victor J. Dzau, Aaron Graves, Robert Dean, and Gary N. Smith

David Thompson
[e-mail]
Attorneys for Plaintiffs2

Joel Miller Craig
[e-mail]
Attorney for Benjamin W. Himan

Paul R. Dickinson, Jr.
[e-mail]
Attorney for Brian Meehan, PHD

2

 Other
 counsel
 from
 Cooper
 &
 Kirk
 have
 also
 been
 provided
 with
 a
 copy
 of
 these
 Objections
 via
 electronic
 mail.

Reginald B. Gillespie, Jr.
[e-mail]
Attorney for the City of Durham and Edward Sarvis

Patricia P. Kerner
[e-mail]
Attorney for Jeff Lamb, Laird Evans, Lee Russ, Michael Ripberger, Patrick Baker, Ronald
Hodge, Stephen Mihaich, Steven Chalmers, and Beverly Council

Robert James King. III
[e-mail]
Attorney for Defendants DNA Security, Inc. and Richard Clark

Brian J. McMillan
[e-mail]
Attorney for Defendants DNA Security, Inc. and Richard Clark

David W. Long
[e-mail]
Attorney for Defendant Mark D. Gottlieb

James B. Maxwell
[e-mail]

Attorney for David W. Addison, James T. Soukup, Kammie Michael, and Richard D. Clayton

Dan Johnson McLamb
[e-mail]
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.
Shirley Maring Pruitt
[e-mail]
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.

James Avery Roberts, III
[e-mail]
Attorney for Brian Meehan, PHD

Henry W. Sappenfield
[e-mail]
Attorney for Benjamin W. Himan

Ryan M. Shuirman
[e-mail]
Attorney for Duke University Health Systems, Inc., Private Diagnostic Clinic, PLLC, Julie
Manly, M.D., Tara Levicy, R.N., and Theresa Arico, R.N.

Edwin M. Speas, Jr.
[e-mail]
Attorney for Defendant Mark D. Gottlieb

Eric P. Stevens
[e-mail]
Attorney for Defendant Mark D. Gottlieb

D. Martin Warf
[e-mail]
Attorneys for Jeff Lamb, Laird Evans, Lee Russ, Michael Ripberger, Patrick Baker, Ronald
Hodge, Stephen Mihaich, Steven Chalmers, and Beverly Council

Linwood Wilson
[e-mail]
Pro Se

Dated: August 31, 2012

Respectfully submitted by:
/s/ Stefanie A. Smith
Stefanie A. Smith (NC Bar No. 42345)