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)

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________ District of __________
Middle District of North Carolina
Ryan McFadyen, et al.,
Plaintiff

v.
Duke University, et al.,
Defendant

)
)
)
)
)
)

Civil Action No.

1:07-cv-953-JAB-JEP

(If the action is pending in another district, state where:
__________ District of __________

)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Chris Cramer
c/o Ellis & Winters, 100 Crescent Green, #200, Cary, North Carolina 27518

✔
u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material: See Exhibit "A" Attached.

Place: Ekstrand & Ekstrand LLP

Date and Time:

811 Ninth Street, Suite 260
Durham, North Carolina 27705

09/21/2012 6:00 pm

u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date:

09/15/2012

CLERK OF COURT
OR
/s/ Stefanie A. Smith
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail, and telephone number of the attorney representing (name of party)
Ryan McFadyen,
, who issues or requests this subpoena, are:
Matthew Wilson, and Breck Archer
Robert C. Ekstrand (NC Bar No. 26673) and Stefanie A. Smith (NC Bar No. 42345), Ekstrand & Ekstrand LLP
811 Ninth Street, Suite 260, Durham, North Carolina 27705
Phone Number: [phone] Email Addresses: [e-mail], [e-mail]

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 1:07-cv-953-JAB-JEP
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of individual and title, if any)
was received by me on (date)

.

u I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

u I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00

.

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction — which may include lost
earnings and reasonable attorney’s fees — on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises — or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party’s
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person — except that,
subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results from
the expert’s study that was not requested by a party; or
(iii) a person who is neither a party nor a party’s officer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty’s failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

EXHIBIT A
DEFINITIONS
As used in this subpoena’s Exhibit A, the following words and phrases have the
following meanings:
1. “Civil Action” means the above-captioned civil action styled as McFadyen, et al. v. Duke
University, et al., and contained in the Middle District as File No. 1:07-CV-953-JAB-JEP.
2. Any defined term herein used shall have the meaning given to it in the Second Amended
Complaint in this matter, unless otherwise defined herein. The Second Amended
Complaint is available online through the PACER website
(https://pacer.login/uscourts.gov/cgi-bin/login.pl)/. Alternatively, if you would like a
copy of the Second Amended Complaint, you may contact the attorney who signed the
subpoena, and he or she will provide you with a copy.
3. “Document” is used in its broadest possible sense, and includes, but is not limited to,
Electronically Stored Information (defined below), every item listed in the Federal Rule
of Civil Procedure 34(a), and any written, printed, typed, computerized, programmed or
graphic matter of any kind or nature, however produced or reproduced, including files
maintained electronically, and all mechanical or electronic sound recording or transcripts
thereof, however produced or reproduced, including but not limited to, letters, notes,
emails, memoranda, reports, envelopes, summaries of conversations or conferences,
studies, analyses, bulletins, instructions, inter- and intra-office communications, charts,
graphs, photographs, anything stored on personal data machine such as a mobile phone,
palm pilot, iPhone, iTouch, iPad, Android, Blackberry, or any similar device, and all
forms of data compilations and recordings. A draft or near-identical copy of a document
is a separate document within the meaning of this term.
4. “Electronically Stored Information” or “ESI” means all electronic communications (e.g.,
e-mail, texts, posts, blogs, and the like), electronic documents, or any other form of
electronically stored information--including writings, drawings, graphs, charts,
photographs, sound recordings, images, and other data or data compilations--stored in
any medium from which information can be obtained either directly or, if necessary, after
translation by the responding party into a reasonably usable form for production
pursuant to this subpoena.
5. “Missing” documents or electronically stored information include any document or ESI
that was, but is no longer in your possession, custody, or control. When called for in this
subpoena, you must identify the missing material as such, and for each missing document
and all missing electronically stored information, you must state whether it is:
a. missing or lost;

b. destroyed;
c. otherwise disposed of, and, if so, in what manner; and
d. for each instance, explain the circumstances surrounding any authorization
for such disposition and state the approximate date thereof.
6. “Plaintiffs” shall mean the named Plaintiffs in this action, Ryan McFadyen, Matthew
Wilson, and Breck Archer.
7. The terms “and” and “or” shall be construed conjunctively or disjunctively as necessary
to make requests inclusive rather than exclusive.
8. The term “all” means everything, tangible or intangible, known to you or which can be
discovered by diligent efforts.
9. Where appropriate, the use of the singular shall include the plural, the use of the plural
shall include the singular, the use of the masculine shall include the feminine, and the use
of the feminine shall include the masculine.
10. “Relate to” or “relates to” means referring to, reflecting, containing, pertaining, referring,
indicating, relating, showing, describing, evidencing, discussing, mentioning, or
concerning.
11. In answering this subpoena, furnish such information as is available to you, not merely
such information that is known by, available to, or in the possession of your employees,
representatives, servants, or agents, including your attorney or any agent or investigator
for you or your attorney (unless privileged).
12. For any document no longer in your possession, custody, or control, identify the
document, state whether it is missing, lost destroyed, transferred to others or otherwise
disposed of, and identify any person who currently has custody or control of the
document or who has knowledge of the contents of the document.
13. If you claim privilege as grounds for objection in response to any part of this subpoena,
identify:
a. the names and address of the speaker or author of the document;
b. the date of the communication or document;
c. the name and address of any person to whom the communication was
made or the document was sent or to whom copies were sent or circulated
at any time;
d. the form of the communication or document (i.e. letter, memorandum,
invoice, contract, etc.);
e. the title and length of the document;

f. the names and addresses of any person currently in possession of the
document and a copy thereof;
g. a detailed description of the communication or document; and
h. the nature of the privilege claimed.
14. “March 14, 2006 Email” is the text alleged to have been sent from Ryan McFadyen’s
email account during the early morning hours of March 14, 2006 and published in the
application for the warrant to search Ryan’s residence and vehicle, which Durham Police
obtained and executed on March 27, 2006. The search warrant which contains the text
of the email has been attached for your reference. The text of the email can be found on
the page of the attached search warrant with Bates No. Pls.00008400 at the bottom right
corner.
15. “Duke University Administrator” includes all employees of Duke University’s Office of
Student Affairs, Duke University’s Office of Judicial Affairs, President Richard
Brodhead, Members of Duke University’s Board of Trustees, staff of Duke University’s
President’s Office, Provost Peter Lange, John Burness, Richard Riddell, Joseph Alleva,
Christopher Kennedy, Aaron Graves, Robert Dean, Kemel Dawkins, Paul Haagen, Chris
Cramer, and members of the Crisis Management Team (defined below).
16. “Crisis Management Team” includes President Richard Brodhead, Provost Peter Lange,
Executive Vice President Tallman Trask, Senior Vice President for Public Affairs John
Burness, Vice President for Student Affairs Larry Moneta, Chancellor for Health Affairs
and CEO of DUHS Victor Dzau, Secretary of the University Allison Haltom, Chair of
the Athletic Council Kathleen Smith, and Vice President for Institutional Equity Ben
Reese.
17. “Communication” is used in the broadest sense and includes, but is not limited to, the
actual or attempted imparting or interchange of thoughts, opinions, or information by
speech, writing, signs, or electronic medium, whether or not a thought, opinion or other
information is actually received or understood by the person(s) to whom it is directed.
18. “Ryan’s Parents” include Sherri and John McFadyen.
19. The terms “You” and “Your” refer to Chris Cramer, including all persons acting on your
behalf.

DOCUMENTS AND TANGIBLE THINGS REQUESTED
1. All Documents relating to the interim suspension of Ryan McFadyen from March 27,
2006 to October 1, 2007.
2. All Documents relating to the March 14, 2006 Email from March 14, 2006 to October 1,
2007.
3. All Documents relating to any investigation of the March 14, 2006 Email from March 14,
2006 to October 1, 2007.
4. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the interim
suspension of Ryan McFadyen from March 27, 2006 to October 1, 2007.
5. All written communications (or documents that refer to non-written communications)
exchanged between You and Ryan’s Parents relating to the interim suspension of Ryan
McFadyen from March 27, 2006 to October 1, 2007.
6. All written communications (or documents that refer to non-written communications)
exchanged between You and Glen Bachman relating to the interim suspension of Ryan
McFadyen from March 27, 2006 to October 1, 2007.
7. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the March
14, 2006 Email from March 14, 2006 to October 1, 2007.
8. All written communications (or documents that refer to non-written communications)
exchanged between You and Ryan’s Parents relating to the March 14, 2006 Email from
March 14, 2006 to October 1, 2007.
9. All written communications (or documents that refer to non-written communications)
exchanged between You and Glen Bachman relating to the March 14, 2006 Email from
March 14, 2006 to October 1, 2007.
10. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to any
investigation of the March 14, 2006 Email from March 14, 2006 to October 1, 2007.

11. All Documents relating to the email1 sent by Chauncey Nartey to Mike Pressler from
March 27, 2006 to September 1, 2006.
12. All Documents relating to any investigation of the email sent by Chauncey Nartey to
Mike Pressler from March 27, 2006 to September 1, 2006.
13. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the email
sent by Chauncey Nartey to Mike Pressler from March 27, 2006 to September 1, 2006.
14. All Documents relating to the attached Application for Disclosure of Customer Account
Information and Order. (The Application for Disclosure of Customer Account
Information and Order are attached for your reference with Bates Nos. Pls.0000840100008402 at the bottom right corner.)
15. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the attached
Application for Disclosure of Customer Account Information and Order. (The
Application for Disclosure of Customer Account Information and Order are attached for
your reference with Bates Nos. Pls.00008401-00008402 at the bottom right corner.)
16. All Documents relating to the Ryan McFadyen Situation/Timeline2 from March 14, 2006
to September 15, 2006.
17. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the Ryan
McFadyen Situation/Timeline from March 14, 2006 to September 15, 2006.

The email which was sent from Chauncey Nartey to Mike Pressler on March 27, 2006 which contained the subject line
“WHAT IF JANET LYNN WERE NEXT???” has been attached for your reference (the document has Bates Nos.
Pls.00022346-00022347 at the bottom right corner) for this request and requests 12 and 13.
2 This document was authored by Eric Van Danen and has been marked as Confidential by your counsel, Ellis &
Winters LLP. Please contact Ellis & Winters, LLP for access to this document so that you can comply with this request
and request 17.
1

Pls.#00008394

Pls.#00008395

Pls.#00008396

Pls.#00008397

Pls.#00008398

Pls.#00008399

Pls.#00008400

Pls.#00008401

Pls.#00008402

Pls.#00008403

Pls.#00008404