MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 297

First MOTION to Compel by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Responses due by 10/18/2012 (Attachments: #1 Exhibit Pls' Request for Production Nos. 1-49, #2 Exhibit Pls' Request for Admission Nos. 4-6, #3 Exhibit Certificate of Compliance with LR 37.1, #4 Exhibit Plaintiffs' Subpoena to Chris Cramer, #5 Exhibit Plaintiffs' Subpoena to Gerald Wilson, #6 Exhibit Plaintiffs' Subpoena to Jack Bookman, #7 Exhibit Plaintiffs' Subpoena to John Burness, #8 Exhibit Plaintiffs' Subpoena to Judith Ruderman, #9 Exhibit Plaintiffs' Subpoena to Larry Moneta, #10 Exhibit Plaintiffs' Subpoena to Prasad Kasibhatla, #11 Exhibit Plaintiffs' Subpoena to Richard Brodhead, #12 Exhibit Plaintiffs' Subpoena to Robert Steel, #13 Exhibit Plaintiffs' Subpoena to Robert Thompson, #14 Exhibit Plaintiffs' Subpoena to Stephen Bryan, #15 Exhibit Plaintiffs' Subpoena to Suzanne Wasiolek, #16 Exhibit Plaintiffs' Subpoena to Zoila Airall, #17 Exhibit Smith Dep. Tr. (extracts), #18 Exhibit Smith Dep. Ex. 1 (Gottlieb's Report) (extracts))(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

PLAINTIFFS’ MOTION TO COMPEL
PLAINTIFFS, Ryan McFadyen, Matthew Wilson, and Breck Archer,
respectfully move for an Order compelling Duke University to produce
complete responses to Plaintiffs’ Request for Production Nos. 3-59 (Ex. 1) and
Plaintiffs for Admission Nos. 4-6 (Ex. 2), under 37.1(a) of the Local Rules and
Rule 37 of the Federal Rules of Civil Procedure.

Pursuant to Rule 37.1(a),

Plaintiffs’ counsel is filing a certification of the meetings Plaintiffs’ counsel
arranged to confer with Duke’s counsel to resolve these discovery disputes and
of the failure of those diligent efforts. (Ex. 3.)
In addition, pursuant to Rule 45 of the Federal Rules of Civil Procedure,
Plaintiffs respectfully request an Order compelling production of documents
and things identified in Plaintiffs’ subpoenas the following non-party Duke
employees and students: Chris Cramer (Ex. 4), Gerald Wilson (Ex. 5), Jack
Bookman, (Ex. 6), John Burness (Ex. 7), Judith Ruderman (Ex. 8), Larry

Moneta (Ex. 9), Prasad Kasibhatla (Ex. 10), Richard Brodhead (Ex. 11), Robert
Steel (Ex. 12), Robert Thompson (Ex. 13), Stephen Bryan (Ex. 14), Suzanne
Wasiolek (Ex. 15), and Zoila Airall (Ex. 16).
Because those non-parties are all represented by Duke’s attorneys of
record in this case, Plaintiff’s motion to compel their production is combined
with Plaintiffs’ motion to compel Duke’s responses to Plaintiff’s written
discovery requests.

STATEMENT OF THE CASE
Plaintiffs sued Duke University and others seeking compensatory and
punitive damages on their claims for fraud and breach of contract.1 Prior to
discovery, Duke moved to dismiss those claims under Fed. R. Civ. P. Rule
12(b)(6). The Court denied the motion, and allowed Plaintiff to proceed to
discovery on those claims.

1

Plaintiffs have asserted other claims against Duke and its co-defendants, however,
the Court has stayed all proceedings on any claim that involved the City of Durham or its
employees pending the Fourth Circuit’s ruling on their appeal of the Court’s denial of their
motions to dismiss based upon various immunities. The City Defendants’ appeal remains
pending before the Fourth Circuit. The Court allowed Plaintiffs to proceed to discovery on
their claims unrelated to the City Defendants: Plaintiffs’ breach of contract and fraud claims
against Duke. Plaintiffs seek compensatory and punitive damages on those claims.

STANDARD OF REVIEW
Under the federal rules, the scope of discovery is construed “to
encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495,
501 (1947)). On a motion to compel discovery under Fed. R. Civ. P. Rule 37,
party resisting discovery bears the burden of showing why discovery should not
be permitted. Carefirst of Md. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402-403
(4th Cir. 2003). To carry its burden the party opposing discovery must “must
make a particularized showing” of why discovery should be denied, and
conclusory or generalized claims "fail to satisfy this burden as a matter of law.”
Id.; Jones v. Circle K Stores, 185 F.R.D. 223, 224 (M.D.N.C. 1999) (the party
opposing discovery must make “a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory statements”). The parties
opposing the discovery requests at issue here cannot carry their burden of
making a “particular and specific demonstration of facts” showing that
Plaintiffs’ discovery requests do not “encompass any matter that bears on, or
that reasonably could lead to other matter that could bear on, any issue that is
or may be in the case.” Oppenheimer Fund., 437 U.S. at 351 (1978); Hickman, 329
U.S. at 501.

ANALYSIS
Because Plaintiffs are entitled to complete responses to the following
discovery requests, and because Plaintiffs’ attorneys’ efforts to resolve the
matter through multiple conferences arranged for the purpose of resolving
these matters have failed, Duke must now be compelled to do so.
I.
Duke’s Redactions
(Plaintiffs’ Request for Production Nos. 3-59)
Duke has redacted from documents significant portions without
identifying the nature of what has been redacted or why. For example, Duke
has redacted every student name that appears in any of the documents or ESI it
produced, and Duke has redacted large segments of documents and ESI
without identifying the nature of the redacted information, the basis for
redacting it, or why the protective order containing all of the protections Duke
requested does not sufficiently protect it. In meetings that Plaintiffs’ counsel
arranged to confer with Duke’s counsel to provide unredacted documents,
Duke’s counsel could not explain why it is not sufficient to mark the document
“confidential” (which Duke uniformly does), thereby protecting the entire
document from disclosure or even filing except under seal. As it stands,
Duke’s redaction, particularly of all student names, only serve to conceal from
Plaintiffs the identity of witnesses.

II.
All Documents, ESI, and Tangible Things Outside of
the “17 Custodians” to which Duke Has Unilaterally
Limited its Review in Responding to Plaintiffs’
Discovery Requests
Plaintiff timely made 59 Requests for Production of Documents and ESI
(Ex. 1). In responding to Plaintiffs’ production requests, Duke did not review
any documents in its possession, custody, or control that were not connected
somehow to one of 17 individuals Duke refers to as “custodians.”
The Court has already rejected Duke’s attempt to limit discovery to any
number of custodians. Prior to the beginning of discovery, Duke sought to
impose this limitation upon Plaintiffs’ discovery requests, and failed. First,
Duke proposed and Plaintiffs refused to accept the limitation in the
conferences on the parties’ Rule 26(f) conference. Duke then urged the Court
to limit its obligation to produce documents or ESI to 17 custodians at the
hearing on the competing reports of the parties’ Rule 26(f) conference, the
Court rejected Duke’s proposal to so limit Plaintiffs’ right of discovery, and no
such limitation can be found in either the Court’s initial discovery order or
protective order.
Plaintiffs are entitled to all documents and ESI that are responsive to
their discovery requests, not just those that are within the ambit of the 17
custodians Duke unilaterally hand-picket prior to the onset of discovery.

During a meeting Plaintiffs’ counsel arranged to confer about Duke’s anemic
production documents, Duke’s counsel revealed that Duke has, all along,
limited its search for responsive electronically stored information to only those
17 custodians. Because Duke failed to conduct the diligent review of all ESI,
documents, and tangible things in its possession, custody, or control, which
Rules 26, 33, and 34 require, Duke must now be compelled to do so under Fed.
R. Civ. P. 37 and LR 37.1.
III.
Subpoenas Duces Tecum to Non-Parties
Plaintiffs issued document subpoenas to several non-party Duke
employees and former students. Specifically, Plaintiffs issued subpoenas to
Chris Cramer (Ex. 4), Gerald Wilson (Ex. 5), Jack Bookman, (Ex. 6), John
Burness (Ex. 7), Judith Ruderman (Ex. 8), Larry Moneta (Ex. 9), Prasad
Kasibhatla (Ex. 10), Richard Brodhead (Ex. 11), Robert Steel (Ex. 12), Robert
Thompson (Ex. 13), Stephen Bryan (Ex. 14), Suzanne Wasiolek (Ex. 15), and
Zoila Airall (Ex. 16).
All of these individuals produced nothing responsive to Plaintiffs’
subpoenas, and all of them have declared that they will not produce anything
responsive to the subpoenas in objections prepared for them by Duke’s
attorneys of record in this case. (Id.) The same day that Plaintiffs’ counsel

learned of this, Plaintiffs’ counsel arranged a meeting with counsel for the
subpoenaed individuals to resolve their objections and obtain the materials
Plaintiffs seek. During the conference, Duke’s attorneys (on behalf of their
non-party clients) advised Plaintiffs’ counsel that the individuals did not have
sufficient time to produce anything responsive to the subpoenas at all.
Plaintiffs’ counsel offered to draft and join in a motion to extend the discovery
period limited only to the subpoenas, but Duke’s counsel refused the offer and
asserted that Duke would object to any effort to extend the time allowed for
these individuals to produce the materials sought in the subpoenas.
Because these individuals refused to produce the materials sought by the
subpoenas directed to them, Plaintiffs respectfully request an order compelling
them to do so pursuant to Fed. R. Civ. P. Rule 45.
IV.
Plaintiffs’ Request for Admission Nos. 4-6
(Duke Police Delivered Plaintiffs’ DukeCard Data to the
Durham Police on March 31, 2006)
Plaintiffs’ Requests for Admission Nos. 4 - 6 (Ex. 2) seek Duke’s
admission that its police officers Smith and Stotsenberg gave Plaintiffs’
DukeCard data to Durham Police Sergeant Mark Gottlieb on March 31, 2006:
Request for Admission No. 4.
Admit that on March 31, 2006, Defendant Gary Smith and
Duke Police Lt. Greg Stotsenberg provided a key card
report for 3/13/06 to 3/14/06 of Plaintiff Ryan McFadyen
to Defendant M.D. Gottlieb.

Request for Admission No. 5.
Admit that on March 31, 2006, Defendant Gary Smith and
Duke Police Lt. Greg Stotsenberg provided a key card
report for 3/13/06 to 3/14/06 of Plaintiff Matthew Wilson
to Defendant M.D. Gottlieb.
Request for Admission No. 6.
Admit that on March 31, 2006, Defendant Gary Smith and
Duke Police Lt. Greg Stotsenberg provided a key card
report for 3/13/06 to 3/14/06 of Plaintiff Matthew Wilson
to Defendant M.D. Gottlieb.
(Ex. 2.) In response to each request, Duke failed to admit or deny those facts.
Rather, Duke claimed it lacked sufficient information to admit or deny them,
asserting:
Duke University has made a reasonable inquiry and the
information that it knows or can readily obtain is
insufficient to enable it to admit or deny that on March 31,
2006, Defendant Gary Smith provided a key card report for
3/13/06 to 3/14/06 of Plaintiff Matthew Wilson to
Defendant M.D. Gottlieb. Except to the extent that it is
expressly stated otherwise, this Request for Admission is
denied.
(Id.)

However, Sgt. Smith himself admitted in sworn testimony that he

provided a report containing each Plaintiffs’ DukeCard data for the period of
March 13 – 14, 2006.
Q: And you also gave them the key card information. Is
that right?
A: At a later date.
Q: Yeah. March 31st?
A: Yes.

Q: Okay. And all of this information you provided, you
did so because it was your understanding that Duke had a
policy of cooperating with Durham. Is that correct?
A: Yes.
(Ex. 17, Smith Dep. 29:22-30:6, Dec. 30, 2011.) Moreover, Sgt. Gottlieb
reported that Smith and Stotsenberg delivered Plaintiffs’ DukeCard data to him
personally. (Exhibit 18, Gottlieb’s “supplemental” report of his activities in the
investigation of Mangum’s allegations.)

And Sgt. Smith confirmed that

Gottlieb’s report was correct in its report that Duke police officers Smith and
Stotsenberg personally delivered Plaintiffs’ DukeCard data to Gottlieb on
March 31, 2006 at 3:00 p.m.:
Q: [Reading from Gottlieb’s report, page 8]
"Investigator Smith and Stotsenberg from Duke police
drove up to the District 2 Substation as I was leaving. And
they had three reports they delivered, reports to me
requested by us. Two were for staff at Duke who were
being harassed due to this case (Duke reports 2006-1548
and 2006-1515), and one is a key card report for the team
members on March 13, 2006, to March 14, 2006."
Is this an accurate statement of what happened at 3 p.m.
on March 31st?
A: I recall giving a key card report. I honestly don't
remember giving them anything else.
(Ex. 17, Smith Dep. 47:19-48:5) Finally, Sgt. Smith admitted that he gave
Gottlieb Plaintiffs’ DukeCard data to Gottlieb in his capacity as the Duke

Police Department’s “lead investigator” in the investigation of Mangum’s false
allegations. (Id. 30:23-25.)
Against these admissions in sworn testimony, Duke claims that it
conducted a diligent inquiry but could not develop sufficient information to
admit or deny that Smith gave Gottlieb Plaintiffs’ DukeCard data. All Duke
had to do was ask Smith, and he would have admitted it; after all, that’s all
Plaintiffs had to do.
Plaintiffs’ counsel requested a meeting to confer about Plaintiffs’
Request for Admission Nos. 4-6, and, at the meeting requested that Duke
supplement its response by admitting those facts. Plaintiffs directed Duke’s
counsel to Sgt. Smith’s deposition testimony and the exhibits annexed thereto.
While Duke’s counsel took no position on the matter but promised to review
it. Plaintiffs are filing this motion to compel in connection with these Requests
for Admission to preserve it, and will file an amended motion in the event
Duke’s counsel provides a supplemental response appropriately revising Duke’s
responses.
CONCLUSION
For all of the foregoing reasons, Plaintiff’s motion to compel should be
granted.

September 21, 2012

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
Counsel for Plaintiffs
/s/ Robert Ekstrand
Robert C. Ekstrand, N.C. Bar No. 26673
Stefanie A. Smith, N.C. Bar No. 42345
811 Ninth Street, Second Floor
[e-mail]
[e-mail]
Tel. [phone]
Fax. [phone]

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

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

)
)
)
)
)
)
)

1:07-cv-953-JAB-JEP

CERTIFICATE SERVICE
The foregoing Motion to Compel and the exhibits annexed thereto were
filed with the Clerk of Court via the Court's CM/ECF system, which will
automatically serve the filing upon all parties to this action by delivering a
notice of and link to the filing to counsel of record, all of whom are registrants
with the Court’s CM/ECF system for service, and directly to Linwood Wilson,
a party who is appearing in this case pro se and is also registered with the Court’s
CM/ECF system.
Respectfully submitted by:
/s/ Robert Ekstrand
Robert C. Ekstrand, N.C. Bar No. 26673