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)

PLAINTIFFS' THIRD REQUEST FOR PRODUCTION TO DUKE
REQUEST NO.3: Every Document that You reviewed in preparing Your
response to any of Plaintiffs' Requests for Production of Documents & Things,
Interrogatories, or Requests for Admission.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for production of documents relating to communications between Duke and its
attorneys and/or work product generated by or under the direction of those
attorneys regarding Duke's response to the Requests. Therefore, Duke objects to
this Request for Production on the grounds that documents responsive to this
Request are protected by the attorney-client privilege, the work-product doctrine,
or any other applicable privilege, immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Therefore, Duke further objects to this Request for Production
to the extent that seeking "[ e]very Document that [Duke] reviewed in preparing
[its] response" is overly broad in that it calls for production of documents that are
not "relevant to any party's claim or defense" to Counts 21 or 24 and thus exceeds
the scope of discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of
the Federal Rules of Civil Procedure. Accordingly, Duke will not produce any
documents in response to this Request for Production.

8

REQUEST NO.4: Every Document identified in Your responses to any of
Plaintiffs' Interrogatories.
ANSWER:
Duke objects to this Request for Production insofar as it calls for the
production of documents already provided in response to Plaintiffs' First Request
for Production. Moreover, documents responsive to this Request that relate to
student disciplinary proceedings and/or criminal proceedings are confidential and
therefore may only be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents it identified in its responses to any of
Plaintiffs' Interrogatories to the extent that any such document (i) exists in Duke's
possession, custody and control, (ii) is relevant to any party's claim or defense to
Counts 21 or 24, and (iii) has not yet been produced.
REQUEST NO.5: Every Document purporting to contain or summarize
precedent of Duke University's Undergraduate Judicial Board, Duke University's
Office of Judicial Affairs, or its successor entity, Duke University's Office of
Student Conduct.
ANSWER:
Duke objects to this Request for Production insofar as the phrase "precedent
of Duke University's Undergraduate Judicial Board, Duke University's Office of
Judicial Affairs, or its successor entity, Duke University Office of Student
Conduct" is undefined, vague, and ambiguous in that it has no established

9

meamng. Moreover, Duke obj ects to this Request for Production insofar as it calls
for the production of documents already provided in Response to Plaintiffs' First
Request for Production.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking "Every Document purporting to contain or
summarize precedent of Duke University's Undergraduate Judicial Board, Duke
University's Office of Judicial Affairs, or its successor entity, Duke University's
Office of Student Conduct" is overly broad in that it calls for production of
documents that are not "relevant to any party's claim or defense" to Counts 21 or
24. In addition, Duke objects to this Request for Production insofar as the Request
is not limited to a defined period of time reasonably related to any party's claim or
defense to Count 21 or 24. In these ways, the Request for Production exceeds the
scope of discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the
Federal Rules of Civil Procedure. Furthermore, documents that relate to student
disciplinary proceedings and/or criminal proceedings are confidential and therefore
may only be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents purporting to contain or summarize
precedent of Duke University's Undergraduate Judicial Board, Duke University's

10

Office of Judicial Affairs, or Duke University's Office of Student Conduct to the
extent that any such document (i) exists in Duke's possession, custody and control,
(ii) is relevant to any party's claim or defense to Counts 21 or 24, and (iii) has not
yet been produced.
REQUEST NO.6: The chart of precedent that is provided to hearing panel
members of Duke University's Undergraduate Judicial Board, Duke University's
Office of Judicial Affairs, or its successor entity, Duke University's Office of
Student Conduct during the hearing panel's deliberations.
ANSWER:
Duke objects to this Request for Production insofar as the phrase "chart of
precedent" is undefined, vague, and ambiguous in that it has no established
meaning. Duke further objects to this Request for Production to the extent it is
duplicative of Request No.5.
In response to this Request, Duke will produce a chart setting forth
guidelines for Undergraduate Judicial Board hearing panels to use when
determining appropriate sanctions.
REQUEST NO.7:
Every Sequestration Order that You received
connection with Crystal Mangum's False Allegations.

III

ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Therefore, Duke objects to this Request for Production to the
extent that seeking "[ e]very Sequestration Order that [Duke] received in

11

connection with Crystal Mangum's False Allegations" is overly broad in that it
calls for production of documents that are not "relevant to any party's claim or
defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed by
the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil Procedure.
Accordingly, Duke will not produce any documents in response to this Request for
Production.
REQUEST NO.8: Every Document reviewed or collected in connection
with any Sequestration Order relating to Mangum's False Allegations.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of documents relating to communications between Duke and its
attorneys and/or work product generated by or under the direction of those
attorneys regarding Sequestration Orders relating to Crystal Mangum's False
Allegations. Therefore, Duke objects to this Request for Production to the extent
that documents responsive to this Request are protected by the attorney-client
privilege, the work-product doctrine, or any other applicable privilege, immunity,
or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Therefore, Duke further objects to this Request for Production
to the extent that seeking "Every Document reviewed or collected in connection
with any Sequestration Order relating to Crystal Mangum's False Allegations" is
12

overly broad in that it calls for production of documents that are not "relevant to
any party's claim or defense" to Counts 21 or 24 and thus exceeds the scope of
discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal
Rules of Civil Procedure. Accordingly, Duke will not produce any documents in
response to this Request for Production.
REQUEST NO.9: Every Document relating to Your review of the policies
and practices of Duke University's Undergraduate Judicial Board, Duke
University's Office of Judicial Affairs, or its successor entity, Duke University's
Office of Student Conduct.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of documents relating to communications between Duke and its
attorneys and/or work product generated by or under the direction of those
attorneys regarding the policies and practice of Duke University's Undergraduate
Judicial Board, Duke University's Office of Judicial Affairs, or its successor entity,
Duke University's Office of Student Conduct. Therefore, Duke objects to this
Request for Production to the extent that documents responsive to this Request are
protected by the attorney-client privilege, the work-product doctrine, or any other
applicable privilege, immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking every document relating to Duke's review of
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"the policies and practices of Duke University's Undergraduate Judicial Board,
Duke University's Office of Judicial Affairs, or its successor entity, Duke
University's Office of Student Conduct," is overly broad in that it calls for
production of documents that are not "relevant to any party's claim or defense" to
Counts 21 or 24. In addition, Duke objects to this Request for Production insofar
as the Request is not limited to a defined period of time reasonably related to any
party's claim or defense to Count 21 or 24.

In these ways, the Request for

Production exceeds the scope of discovery as allowed by the June 9, 2011 Order
and Rule 26(b)(1) of the Federal Rules of Civil Procedure. Moreover, documents
that relate to student disciplinary proceedings and/or criminal proceedings are
confidential and therefore may only be produced after the entry of an appropriate
protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents relating to the Duke's review of the
policies and practices of Duke University's Undergraduate Judicial Board, Duke
University's Office of Judicial Affairs, or its successor entity, Duke University's
Office of Student Conduct, to the extent that any such document, (i) exists in
Duke's possession, custody and control, (ii) is relevant to any party's claim or
defense to Counts 21 or 24, and (iii) has not yet been produced.

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REQUEST NO. 10: Every Document relating or referring to Duke
University disciplinary proceedings or criminal proceedings against any student
charged with Impaired Driving in violation of N.C. Gen. Stat. 20-138.1, between
August 1,2004 and May 30,2009.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of documents relating to communications between Duke and its
attorneys and/or work product generated by or under the direction of those
attorneys regarding Duke University disciplinary proceedings or criminal
proceedings against any student charged with Impaired Driving in violation of
N.C. Gen. Stat. 20-138.1, between August 1, 2004, and May 30,2009. Therefore,
Duke objects to this Request for Production to the extent that documents
responsive to this Request are protected by the attorney-client privilege, the workproduct doctrine, or any other applicable privilege, immunity, or exemption
recognized by law.

Moreover, documents related to student disciplinary

proceedings and/or criminal proceedings are confidential and therefore may only
be produced after the entry of an appropriate protective order. In addition, Duke
objects to this Request for Production insofar as documents relating to criminal
proceedings against any student charged with Impaired Driving in violation of
N.C. Gen. Stat. 20-138.1 are not within Duke's possession, custody, or control.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for
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Production to the extent that seeking documents relating to "Duke University
disciplinary proceedings or criminal proceedings against any student charged with
Impaired Driving in violation of N.C. Gen. Stat. 20-138.1, between August 1,
2004, and May 30, 2009" is overly broad in that it calls for production of
documents that are not "relevant to any party's claim or defense" to Counts 21 or
24 and thus exceeds the scope of discovery as allowed by the June 9, 2011 Order
and Rule 26(b)( 1) of the Federal Rules of Civil Procedure.
In response to this Request, and subject to the entry of an appropriate
protective order, Duke will produce non-privileged documents relating to Duke
University's disciplinary proceedings or criminal proceedings against any student
charged with Impaired Driving in violation of N.C. Gen Stat. 20-138.1, between
August 1, 2004, and May 30, 2009, to the extent that any such document, (i) exists
in Duke's possession, custody and control, (ii) is relevant to any party's claim or
defense to Counts 21 or 24, and (iii) has not yet been produced.
REQUEST NO. 11: Every Document that constitutes, contains, refers to,
or relates to criminal process (e.g., a citation, warrant, indictment, or other
charging instrument) initiating criminal proceedings against any undergraduate
student enrolled at Duke University between August 1,2004 and May 30, 2009.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of documents relating to communications between Duke and its
attorneys and/or work product generated by or under the direction of those
16

attorneys regarding "criminal process ... initiating criminal proceedings against
any undergraduate student enrolled at Duke University between August 1, 2004
and May 30, 2009." Therefore, Duke objects to this Request for Production to the
extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking documents relating to "criminal process ...
initiating criminal proceedings against any undergraduate student enrolled at Duke
University between August 1, 2004 and May 30, 2009" is overly broad in that it
calls for production of documents that are not "relevant to any party's claim or
defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed by
the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil Procedure.
Moreover, documents related to criminal proceedings are confidential and
therefore may only be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents relating to criminal process initiating
criminal proceedings against any undergraduate student enrolled at Duke
University between August 1, 2004, and May 30, 2009, to the extent that any such

17

document, (i) exists in Duke's possession, custody and control, (ii) is relevant to
any party's claim or defense to Counts 21 or 24, and (iii) has not yet been
produced.
REQUEST NO. 12: Every Document that constitutes Suzanne Wasiolek's
notes in preparation for her 30(b)(6) deposition as referred to in her 30(b)(6)
deposition on behalf of Duke University.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of documents relating to communications between Duke and its
attorneys and/or Suzanne Wasiolek and her attorneys and/or work product
generated by or under the direction of those attorneys regarding Ms. Wasiolek's
30(b )(6) deposition. Therefore, Duke objects to this Request for Production on the
grounds that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law. Accordingly, Duke will not produce
any documents in response to this Request for Production.
REQUEST NO. 13: Every Document and Communication sent from Larry
Moneta to Christopher Kennedy from March 13, 2006 to August, 1, 2007.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of communications between Larry Moneta, Christopher
Kennedy and their attorneys.

Therefore, Duke objects to this Request for
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Production to the extent that documents responsive to this Request are protected by
the attorney-client privilege, the work-product doctrine, or any other applicable
privilege, immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking "Document and Communication sent from
Larry Moneta to Christopher Kennedy from March 13, 2006 to August, 1, 2007" is
overly broad in that it calls for production of documents that are not "relevant to
any party's claim or defense" to Counts 21 or 24 and thus exceeds the scope of
discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal
Rules of Civil Procedure. Moreover, documents related to student disciplinary
proceedings and/or criminal proceedings are confidential and therefore may only
be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications sent from Larry
Moneta to Christopher Kennedy from March 13, 2006, to August 1, 2007, to the
extent that any such document, (i) exists in Duke's possession, custody and
control, (ii) is relevant to any party's claim or defense to Counts 21 or 24, and (iii)
has not yet been produced.

19

REQUEST NO. 14: Every Document and Communication sent from John
Burness to Christopher Kennedy from March 13,2006 to August, 1,2007.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of communication between John Burness, Christopher Kennedy,
and their attorneys. Therefore, Duke objects to this Request for Production to the
extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking "Document and Communication sent from
John Burness to Christopher Kennedy from March 13, 2006 to August, 1, 2007" is
overly broad in that it calls for production of documents that are not "relevant to
any party's claim or defense" to Counts 21 or 24 and thus exceeds the scope of
discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal
Rules of Civil Procedure. Moreover, documents related to student disciplinary
proceedings and/or criminal proceedings are confidential and therefore may only
be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,

Duke will produce non-privileged documents or communications sent from John
20

Burness to Christopher Kennedy from March 13, 2006, to August 1, 2007, to the
extent that any such document, (i) exists in Duke's possession, custody and
control, (ii) is relevant to any party's claim or defense to Counts 21 or 24, and (iii)
has not yet been produced.
REQUEST NO. 15: Every Document and Communication sent from John
Burness to any representative of a news organization referring to or relating to
Ryan McF adyen.
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production to the
extent that seeking all communications "sent from John Burness to any
representative of a news organization referring to or relating to Ryan McFadyen" is
overly broad in that it calls for production of documents that are not "relevant to
any party's claim or defense" to Counts 21 or 24 and thus exceeds the scope of
discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal
Rules of Civil Procedure. Duke further objects to this Request for Production
insofar as it is duplicative of Request No.3.
In response to this Request, Duke will produce non-privileged documents or
communications sent from John Burness to any representative of a news
organization referring to or relating to Ryan McFadyen to the extent any such
document, (i) exists in Duke's possession, custody and control, (ii) is relevant to

21

any party's claim or defense to Counts 21 or 24, and (iii) has not yet been
produced.
REQUEST NO. 16: Every Document and Communication between
Richard Brodhead and any member of the 2005-2006 Duke University Board of
Trustees on April 5, 2006.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of communication on April 5, 2006, between Richard Brodhead,
members of the 2005-2006 Duke University Board of Trustees and Duke's
attorneys. Therefore, Duke objects to this Request for Production to the extent that
documents responsive to this Request are protected by the attorney-client privilege,
the work-product doctrine, or any other applicable privilege, immunity, or
exemption recognized by law.

Moreover, documents related to student

disciplinary proceedings and/or criminal proceedings, the minutes of Board of
Trustees meetings, and certain other communications with the Board of Trustees
are confidential and therefore may only be produced after the entry of an
appropriate protective order.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking communications "between Richard Brodhead
and any members of the 2005-2006 Duke University Board of Trustees on April 5,

22

2006" is overly broad in that it calls for production of documents that are not
"relevant to any party's claim or defense" to Counts 21 or 24 and thus exceeds the
scope of discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the
Federal Rules of Civil Procedure.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Richard
Brodhead and any member of the 2005-2006 Duke University Board of Trustees
on April 5, 2006, to the extent that any such document exists in Duke's possession,
custody and control and is relevant to any party's claim or defense to Counts 21 or
24.

REQUEST NO. 17: Every Document and Communication between John
Burness and any member of the 2005-2006 Duke University Board of Trustees on
April 5, 2006.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of communication on April 5, 2006, between John Burness,
members of the 2005-2006 Duke University Board of Trustees, and Duke's
attorneys. Therefore, Duke objects to this Request for Production to the extent that
documents responsive to this Request are protected by the attorney-client privilege,
the work-product doctrine, or any other applicable privilege, immunity, or
exemption recognized by law.

Moreover, documents related to student

23

disciplinary proceedings and/or criminal proceedings, the minutes of Board of
Trustees meetings, and certain other communications with the Board of Trustees
are confidential and therefore may only be produced after the entry of an
appropriate protective order.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that seeking communications "between John Burness and
any members of the 2005-2006 Duke University Board of Trustees on April 5,
2006" is overly broad in that it calls for production of documents that are not
"relevant to any party's claim or defense" to Counts 21 or 24 and thus exceeds the
scope of discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the
Federal Rules of Civil Procedure.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between John
Burness and any member of the 2005-2006 Duke University Board of Trustees on
April 5, 2006, to the extent that any such document exists in Duke's possession,
custody and control and is relevant to any party's claim or defense to Counts 21 or
24.

24

REQUEST NO. 18: All minutes and recordings of Duke University's
faculty meetings from March 15,2006 to September 15,2007.
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production on
the grounds that seeking "[a]ll minutes and recordings of Duke University's faculty
meetings from March 15, 2006 to September 15, 2007" is overly broad in that it
calls for production of documents that are not "relevant to any party's claim or
defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed by
the June 9, 2011 Order and Rule 26(b)(l) of the Federal Rules of Civil Procedure.
Accordingly, Duke will not produce any documents in response to this Request for
Production.

REQUEST NO. 19: All minutes and recordings of Duke University's
Academic Council from March 15, 2006 to September 15, 2007.
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production on
the grounds that seeking "[a]ll minutes and recordings of Duke University's
Academic Council from March 15,2006 to September 15,2007" is overly broad in
that it calls for production of documents that are not "relevant to any party's claim
or defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed

25

by the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil
Procedure. Accordingly, Duke will not produce any documents in response to this
Request for Production.
REQUEST NO. 20: Every Document and Communication between
Stephen Bryan and Larry Moneta from March 13, 2006 to December 30, 2006
referring to or relating to Matthew Wilson.
ANSWER:
Duke objects to this Request for Production to the extent the Request calls
for the production of communication between Stephen Bryan, Larry Moneta, and
Duke's attorneys. Therefore, Duke objects to this Request for Production to the
extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that the request for documents or communications
between Stephen Bryan and Larry Moneta referring or relating to Matthew Wilson
is overly broad in that it calls for production of documents that are not "relevant to
any party's claim or defense" to Counts 21 or 24 and thus exceeds the scope of
discovery as allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal
Rules of Civil Procedure. Moreover, documents related to student disciplinary

26

proceedings and/or criminal proceedings are confidential and therefore may only
be produced after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Stephen
Bryan and Larry Moneta from March 13, 2006, to December 30, 2006, that
specifically mention Matthew Wilson to the extent that any such document (i)
exists in Duke's possession, custody and control, (ii) is relevant to any party's
claim or defense to Counts 21 or 24, and (iii) has not yet been produced.

REQUEST NO. 21: Every Document and Communication between John
Burness and any representative of a news organization referring to or relating to
Matthew Wilson.
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production to the
extent that the request calling for documents or communications between John
Burness and any representative of a news organization referring to or relating to
Matthew Wilson is overly broad in that it calls for production of documents that
are not "relevant to any party's claim or defense" to Counts 21 or 24 and thus
exceeds the scope of discovery as allowed by the June 9, 2011 Order and Rule
26(b)(1) of the Federal Rules of Civil Procedure. Duke further objects to this
Request for Production insofar as it is duplicative of Request No.4.

27

In response to this Request, Duke will produce non-privileged documents or
communications between John Burness and any representative of a news
organization that specifically mention Matthew Wilson to the extent that any such
document exists in Duke's possession, custody and control and is relevant to any
party's claim or defense to Counts 21 or 24.

REQUEST NO. 22: All photographs or videotape regarding the subject
matter of this litigation.
ANSWER:
Duke objects to this Request for Production insofar as the term "subject
matter of this litigation" is undefined, vague, and ambiguous in that it has no
defined meaning. Pursuant to the June 9, 2011 Order, discovery may proceed only
as to Counts 21 and 24. Accordingly, Duke further objects to this Request for
Production to the extent that the request seeking "all photographs or videotape
regarding the subject matter of this litigation" is overly broad in that it calls for
production of materials not "relevant to any party's claim or defense" to Counts 21
or 24 and thus exceeds the scope of discovery as allowed by the June 9, 2011
Order and Rule 26(b)(1) of the Federal Rules of Civil Procedure.

Moreover,

recordings related to student disciplinary proceedings are confidential and
therefore may only be produced after the entry of an appropriate protective order.

28

In response to this Request, and subject to the entry of a protective order,
Duke will produce photographs or videotapes that exist in its possession, custody
and control and are relevant to any party's claim or defense to Counts 21 or 24.
REQUEST NO. 23: Every Document and Communication between
Stephen Bryan and Suzanne Wasiolek on April 5, 2006.
ANSWER:
Duke objects to this Request for Production to the extent it calls for the
production of communication between Stephen Bryan, Suzanne Wasiolek, and
Duke's attorneys. Therefore, Duke objects to this Request for Production to the
extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that the request for documents or communications
"between Stephen Bryan and Suzanne Wasiolek on April 5, 2006" is overly broad
in that it calls for production of documents that are not "relevant to any party's
claim or defense" to Counts 21 or 24 and thus exceeds the scope of discovery as
allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil
Procedure.

Moreover, documents related to student disciplinary proceedings

29

and/or criminal proceedings are confidential and therefore may only be produced
after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Stephen
Bryan and Suzanne Wasiolek on April S, 2006, to the extent that any such
document (i) exists in Duke's possession, custody and control, (ii) is relevant to
any party's claim or defense to Counts 21 or 24, and (iii) has not yet been
produced.

REQUEST NO. 24: Every Document and Communication between Larry
Moneta and Suzanne Wasiolek on AprilS, 2006.
ANSWER:
Duke objects to this Request for Production to the extent it calls for the
production of communications between Larry Moneta, Suzanne Wasiolek, and
Duke's attorneys. Therefore, Duke objects to this Request for Production to the
extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that the request for documents or communications
"between Larry Moneta and Suzanne Wasiolek on April S, 2006" is overly broad
30

in that it calls for production of documents that are not "relevant to any party's
claim or defense" to Counts 21 or 24 and thus exceeds the scope of discovery as
allowed by the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil
Procedure.

Moreover, documents related to student disciplinary proceedings

and/or criminal proceedings are confidential and therefore may only be produced
after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Larry
Moneta and Suzanne Wasiolek on April 5, 2006, to the extent that any such
document (i) exists in Duke's possession, custody and control, (ii) is relevant to
any party's claim or defense to Counts 21 or 24, and (iii) has not yet been
produced.

REQUEST NO. 25: Every Document and Communication between
Stephen Bryan and Larry Moneta on April 5, 2006.
ANSWER:
Duke objects to this Request for Production to the extent it calls for the
production of communication between Stephen Bryan, Larry Moneta, and Duke's
attorneys. Therefore, Duke objects to this Request for Production to the extent that
documents responsive to this Request are protected by the attorney-client privilege,
the work-product doctrine, or any other applicable privilege, immunity, or
exemption recognized by law.
31

Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that the request for documents or communications
"between Stephen Bryan and Larry Moneta on April 5, 2006" is overly broad in
that it calls for production of documents that are not "relevant to any party's claim
or defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed
by the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil
Procedure.

Moreover, documents related to student disciplinary proceedings

and/or criminal proceedings are confidential and therefore may only be produced
after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Stephen
Bryan and Larry Moneta on April 5, 2006, to the extent that any such document (i)
exists in Duke's possession, custody and control, (ii) is relevant to any party's
claim or defense to Counts 21 or 24, and (iii) has not yet been produced.

REQUEST NO. 26: Every Document and Communication between
Richard Brodhead and John Burness on April 5, 2006.
ANSWER:
Duke objects to this Request for Production to the extent it calls for the
production of communication between Richard Brodhead, John Burness, and
Duke's attorneys. Therefore, Duke objects to this Request for Production to the
32

extent that documents responsive to this Request are protected by the attorneyclient privilege, the work-product doctrine, or any other applicable privilege,
immunity, or exemption recognized by law.
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24.

Accordingly, Duke further objects to this Request for

Production to the extent that the request for documents or communications
"between Richard Brodhead and John Burness on April 5, 2006" is overly broad in
that it calls for production of documents that are not relevant to any party's claim
or defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed
by the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil
Procedure.

Moreover, documents related to student disciplinary proceedings

and/or criminal proceedings are confidential and therefore may only be produced
after the entry of an appropriate protective order.
In response to this Request, and subject to the entry of a protective order,
Duke will produce non-privileged documents or communications between Richard
Brodhead and John Burness on April 5, 2006, to the extent that any such document
(i) exists in Duke's possession, custody and control, (ii) is relevant to any party's
claim or defense to Counts 21 or 24, and (iii) has not yet been produced.

33

REQUEST NO. 27: The telephone records of calls made from Roland
Getliffe's telephone to Matthew Drummond's telephone from March 13, 2006 to
4
April 13, 2007.
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production to the
extent that the request for telephone records of calls made from Roland Getliffe's
(sic) telephone to Matthew Drummond's telephone from March 13, 2006 to April
13, 2007, is overly broad in that it calls for production of documents that are not
"relevant to any party's claim or defense" to Counts 21 or 24 and thus exceeds the
scope of discovery as allowed by the June 9,2011 Order and Rule 26(b)(1) of the
Federal Rules of Civil Procedure.

Duke further objects to this Request for

Production to the extent that documents responsive to this Request, such as records
for Roland Gettliffe's and Matthew Drummond's cell phones, are not in Duke's
possession, custody, or control.
In response to this Request, Duke states that it is in the process of attempting
to collect records responsive to this Request and will supplement this production if
it locates any such responsive documents.

"Telephone" as applied to both Roland Gettliffe and Matthew Drummond refers
to the Duke University telephone lines either individual would have access to in
their offices located in the West Union Building on Duke University's West
Campus as well as their cell phones.
4

34

SUPPLEMENTAL ANSWER:
Notwithstanding, and without waiving, its general and specific
objections, Duke has located and will produce documents sufficient to
evidence telephone records of certain calls made "from Roland Getliffe's (sic)
telephone" from March 2006 through June 2006 inclusive.
Duke will produce records evidencing cellular calls made to and from
Duke mobile number 919-363-9605 (Mr. Gettliffe) for the months March 2006
through June 2006 inclusive. Duke will also produce Duke landline records
evidencing calls for the months March 2006 through June 2006 inclusive from
telephone number 919-684-3360 (Mr. Gettliffe). Duke states that it does not
maintain records for office landline calls where the charge was not more than

$0.00 (e.g., calls between Duke landlines). Duke further states that it is not in
possession, custody, or control of the telephone records corresponding to Mr.
GeHliffe's personallandlines, cellular telephones, or other communication
devices.

35

REQUEST NO. 28: The telephone records of calls made by Matthew
Drummond to his voicemail from March 13,2006 to April 13,2007. 5
ANSWER:
Pursuant to the June 9, 2011 Order, discovery may proceed only as to
Counts 21 and 24. Accordingly, Duke objects to this Request for Production to the
extent that the request for telephone records of calls made by Matthew Drummond
to his voicemail from March 13, 2006, to April 13, 2007, is overly broad in that it
calls for production of documents that are not "relevant to any party's claim or
defense" to Counts 21 or 24 and thus exceeds the scope of discovery as allowed by
the June 9, 2011 Order and Rule 26(b)(1) of the Federal Rules of Civil Procedure.
Duke further objects to this Request for Production to the extent that documents
responsive to this request, such as the records for Matthew Drummond's cell
phone, are not in Duke's possession, custody, or control.
In response to this Request, Duke states that it is in the process of attempting
to collect records responsive to this Request and will supplement this production if
it locates any such responsive documents.

"Voicemail" as applied to Matthew Drummond refers to Matthew Drummond's
office voicemail at Duke University as well as his cell phone voicemail.

5

36

SUPPLEMENTAL ANSWER:
Notwithstanding, and without waiving, its general and specific
objections, Duke has located and will produce documents sufficient to
evidence telephone records of certain calls "made by Matthew Drummond to
his voicemail" from March 2006 through June 2006 inclusive.
Duke will produce records evidencing cellular calls made to and from
Duke mobile number 919-451-9403 (Mr. Drummond) for the months March
2006 through June 2006 inclusive. These include calls made to voicemail
(represented by the number "86"). Duke states that it does not maintain
records for office landline calls where the charge was not more than $0.00
(e.g., calls to Duke landline voicemail). Duke further states that it is not in

possession, custody, or control of the telephone records corresponding to Mr.
Drummond's personallandlines, cellular telephones, or other communication
devices.

37

This the 7th day of August, 2012.

RicharfJElli
N.C. S~te ar o. 1335
Email: d;[e-mail]
Paul K Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
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

38

CERTIFICATE OF SERVICE
It is hereby certified that the foregoing Duke University's First

Supplemental Response to Plaintiffs' Third Request for Production to Duke
University has been served this day by depositing copies thereof in a depository
under the exclusive care and custody of the United States Postal Service in a
postage prepaid envelope properly addressed as below, or by electronic
transmission as provided in Rule 5(b)(2)(E) to those parties whose counsel agreed
in writing to such electronic service in lieu of service by mail:
BYE-MAIL:
Robert C. Ekstrand
Stefanie A. Smith
EKSTRAND & EKSTRAND LLP
811 Ninth Street, Suite 260
Durham, NC 27705
Counsel for Plaintiffs

This the 7th day of August, 2012.

Jere

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