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)

Page 1
December 30, 2011

Deposition of Gary Smith

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

RYAN MCFADYEN, et al.,
Plaintiffs,
vs.

1:07-CV-00953

DUKE UNIVERSITY, et al.,
Defendants.

DEPOSITION
OF
GARY NEAL SMITH

At Durham, North Carolina
December 30, 2011 - 9:37 a.m.

Capital Reporting, Inc.
[phone]

Reported by:
Cathleen M. Clack

Page 28
December 30, 2011

Deposition of Gary Smith

1

the Duke police sought to get access to the Duke

2

students' e-mail accounts?

3

A:

I can't.

4

Q:

Okay.

So let's go back to this case.

In

5

addition to photographs, and let's leave the key card

6

information to the side, was there any other information

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that you provided to the Durham police?

8

A:

In reference to lacrosse?

9

Q:

Yes, sir.

10

A:

Okay.

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Copies of the reports.

Any report

that might have involved any of the lacrosse players.

12

Q:

Just to be clear.

13

A:

Prior reports.

14

Q:

Okay.

15

A:

I don't recall expressly doing so, but the

16

Chris Day report might have been among them.
The photographs.

17
18

So prior --

A roster from goduke.com

for the lacrosse players.

19

Q:

Okay.

20

A:

I don't recall, but I may have given them a

21

list of names and contact information.

22

Q:

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information.

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A:

At a later date.

25

Q:

Yeah.

I don't remember.

And you also gave them the key card
Is that right?

March 31st?

Capital Reporting, Inc.
[phone]

Page 29
December 30, 2011

Deposition of Gary Smith

1

A:

Yes.

2

Q:

Okay.

And all of this information you

3

provided, you did so because it was your understanding

4

that Duke had a policy of cooperating with Durham.

5

that correct?

6

A:

Yes.

7

Q:

Okay.

Is

And the photographs, was that your

8

idea to provide the photographs to them or did they

9

request them from you?

10

A:

I'm trying to remember.

I think -- I don't

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remember if I asked Gottlieb if he needed photographs or

12

he mentioned that he needed photographs, but I had easy

13

access.

14

so I provided them to him.

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I knew they were available through goduke.com,

Q:

Okay.

And the names and contact information,

16

was that information Gottlieb requested or was that your

17

idea to provide it to him?

18

A:

You know, I don't recall.

19

Q:

All right.

And the copies of the reports of

20

prior incidents relating to the lacrosse players, was

21

that your idea to provide that information?

22
23
24
25

A:

No.

He asked for what we might have on prior

incidents.
Q:

Were there any privacy concerns relating to

that information?

Capital Reporting, Inc.
[phone]

Page 30
December 30, 2011

Deposition of Gary Smith

1

A:

Not -- my experience with Duke was another

2

agent -- if another law enforcement agency came and asked

3

us for information, we would provide it.

4

came in off the street and said, hey, can I have copies

5

of this stuff, then there's -- we would be less likely to

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provide it.

7

Q:

Is there a process to consider such requests?

8

A:

We've got -- there's some reports that are

9
10
11

If somebody

public record and there's some that aren't.
Q:

And that's what determines whether you turned

the information over?

12

A:

I'm sorry, yes.

13

Q:

Do you recall anyone else at Duke ever asking

14

you for the information relating to their prior incidents

15

of the lacrosse team members?

16

A:

Nobody asked me.

17

Q:

Now, we've been talking about the fact that

18

you had interaction with Mr. Gottlieb.

Why did you have

19

interaction with Mr. Gottlieb as opposed to someone else

20

within the Duke Police Department?

21

A:

22

investigator.

23

Q:

Who appointed you the lead investigator?

24

A:

That would have been Phyllis Cooper.

25

Q:

And she was one of the four --

At that point, I was kind of sort of the lead

Capital Reporting, Inc.
[phone]

Page 47
December 30, 2011

Deposition of Gary Smith

So is this a shift in policy from what you've

1
2
3
4
5

described?
A:

That is a change in how we conducted our

affairs.
Q:

Okay.

So at the time that Mr. Gottlieb went

6

in to Edens C, it was perfectly acceptable, but in the

7

aftermath of that, there was a change in policy.

8

fair to say?

9

A:

Yes.

10

Q:

Okay.

All right.

Is that

Now, let's look back at

11

what was Exhibit 1, and to page 8.

And these are entries

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for March 31, 2006.

13

hours, or 3 p.m., it says, "Investigator Smith and

14

Stotsenberg from Duke police" -- oh, do you see where I'm

15

reading?

If you look at the entry for 1500

16

A:

What time?

17

Q:

Sorry.

18

A:

Okay.

19

Q:

"Investigator Smith and Stotsenberg from Duke

3 p.m., 1500.

20

police drove up to the District 2 Substation as I was

21

leaving.

22

reports to me requested by us.

23

Duke who were being harassed due to this case (Duke

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reports 2006-1548 and 2006-1515), and one is a key card

25

report for the team members on March 13, 2006, to

And they had three reports they delivered,
Two were for staff at

Capital Reporting, Inc.
[phone]

Page 48
December 30, 2011

Deposition of Gary Smith

1

March 14, 2006."
Is this an accurate statement of what

2
3
4
5
6
7

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.
Q:

Okay.

So you don't recall what these other

two reports were?

8

A:

I don't recall, no.

9

Q:

I'd like to -- you can put Smith 1 to the

10

side, sir.
MR. THOMPSON:

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12

I'd like to ask the court

reporter to mark as Smith 3 the following document.

13

[SMITH EXHIBIT NO. 3 WAS MARKED FOR

14

IDENTIFICATION]

15
16

BY MR. THOMPSON:
Q:

Thank you.

So, sir, this is an e-mail from

17

Aaron Graves dated July 25, 2007, to Kemel Dawkins,

18

subject "Confidential."

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woman?

Who is -- is Dawkins a man or a

20

A:

A man.

21

Q:

Who is Mr. Dawkins?

22

A:

At that time, he was Aaron Graves' boss.

23

Q:

Okay.

24

A:

I don't recall the position.

25

Q:

Is he still in that position?

Capital Reporting, Inc.
[phone]